Indonesia: Human Rights

The Lord Bishop of Oxford: asked Her Majesty's Government:
	What representations they are making to the government of Indonesia about the abuse of human rights in West Papua.

Lord Triesman: My Lords, we are concerned about reports of human rights abuses in Papua, and we raise those regularly with the government of Indonesia. We also encourage the Indonesian Government to engage in dialogue with Papuan representatives and to proceed with full implementation of the special autonomy legislation.
	We are encouraged by the president's recent statements that his government wish to solve the issue of Papua through dialogue,
	"in a peaceful, just and dignified manner".

The Lord Bishop of Oxford: My Lords, I thank the Minister for his Answer. Is he aware that, in the light of continuing human rights abuses and the growing presence of the Indonesian army in West Papua, Rachel Harvey, the BBC's correspondent in Jakarta, has now been refused entry to that country three times? Will he make further representations to ensure that there is free access to all parts of West Papua for human rights organisations, humanitarian organisations and journalists?

Lord Triesman: My Lords, we most certainly will. We already regularly raise access to Papua with the Indonesian Government as part of our dialogue with them on human rights. In the context of that dialogue we are happy to encourage greater transparency, including greater access for media representatives and NGOs. The area is fairly isolated, so it is not always easy for people to get into it and successfully to do the work that they wish to carry out, but we will give every encouragement and assistance that we can.

Baroness Seccombe: My Lords, do the government of West Papua have the power to detain people for a period of 90 days without charge?

Lord Triesman: My Lords, there is no government of West Papua; it is not autonomous from the Indonesian state. There are arrangements there that unquestionably infringe human rights. People are detained and the army—we think that there are about 5,000 troops—acts in ways that are not acceptable to us. Those issues are raised routinely with the government of Indonesia, and we will continue to do that.

Baroness Tonge: My Lords, does the Government's laudable policy not to sell arms to any government who would use them for internal oppression or external aggression still apply? If so, why are we still sending arms to Indonesia?

Lord Triesman: My Lords, any export of military or dual-use equipment to Indonesia requires an export licence. Each export licence application is assessed individually, on a case-by-case basis, against the consolidated EU and national arms export licensing criteria and other policies, and in the light of the prevailing circumstances in Indonesia at the time of application. We refuse any applications where we judge that there is a clear risk that the proposed export might be used for internal repression or might aggravate existing tensions in Indonesia.

Lord Davies of Coity: My Lords, while it is quite right that we should be making representations to the Indonesian Government on their human rights record, to what extent does the Minister expect the influence of those representations to have an impact and to what extent are the United Nations making the same kind of representations?

Lord Triesman: My Lords, I have taken a little encouragement—not an excessive amount of encouragement, to be sure—from the outbreak of peace in Aceh and the willingness to try to resolve the issues there. Our view is that Papua will be—we believe that it should be—the next in the line of areas of Indonesia which should come into peaceful, law abiding and normal society. The developments in Aceh should give us cause for hope. The President of Indonesia has made it clear that Papua is the next place in line for the process. But he also presides over a minority government. The stresses inside Indonesia are well known and are very difficult. The whole international community and the UN have to try to ensure that the progress that has been promised will be achieved.

Lord Elton: My Lords, the Minister has told us of the representations that we make. The noble Lord, Lord Davies of Coity, asked whether they are joined with those of the United Nations. Is it our voice alone that is pleading? If so, what motivation and pressure can we bring on the government of Indonesia other than our sense of outrage?

Lord Triesman: My Lords, I am sorry if I was not as clear as I had hoped to be in my previous answer. When I said that we are making representations alongside other members of the international community and international organisations, I certainly had the United Nations and its Secretary-General in mind. There is a good deal of pressure. The Aceh development was in no small part due to some of the pressures that came through the United Nations. I believe that we made our own contribution to that process. I am very pleased that we did. In order to get the remainder of that process under way, we have to take the President of Indonesia at his word. The next step, after Aceh, must be Papua. We must put international pressure on to make sure that the promise is made good.

Viscount Eccles: My Lords, how much does the Minister think Indonesian resettlement programmes lead to human rights tensions in Papua?

Lord Triesman: My Lords, I suspect that in a number of the areas of Indonesia, which is a very large and diverse society, the resettlement of people where they are unwilling to be resettled is bound to lead to human rights abuses. Those are among the abuses that we are eager should be overcome. There needs to be a successful peace process across Indonesia, which is why I am trying to take what encouragement is available from the first really tangible steps in that direction.

Baroness Northover: My Lords, the noble Lord made reference to the peace deal in Aceh, which is obviously very much to be welcomed. However, in terms of West Papua, does the Minister agree that it is very concerning to see things going backwards? There is now an increase in the number of troops there to 50,000. Should not the lessons from Aceh be learnt for West Papua? Will he urge that on the Indonesian Government?

Lord Triesman: My Lords, the noble Baroness has a figure for troop deployments which exceeds by a factor of 10 what we believe to be the case, so I am not sure that those figures are reliable. But the process has started. There have been some tangible changes. For example, there has been agreement now that 70 per cent of the value of oil reserves, and 80 per cent of timber, mineral and other reserves, originating in Papua should be ploughed back into that community in order to give it some wealth and stability. Although these are done deals, none of them is definitely delivered yet. Those are all things that we have to investigate to make sure that things are going in the right direction.

Iraq: Withdrawal

Lord Lamont of Lerwick: asked Her Majesty's Government:
	Whether they will fix a timetable for the withdrawal of British troops from Iraq.

Lord Drayson: My Lords, the UK is committed to Iraq until such time as the Iraqis are able to take responsibility for their own security. Withdrawal of our troops from Iraq will not depend on reaching certain dates or milestones, but on achieving certain conditions which will be based on principles outlined by the Iraqi Joint Committee to Transfer Security Responsibility.

Lord Lamont of Lerwick: My Lords, I thank the Minister for that reply, but is it not increasingly clear that the occupation feeds the insurgency; that many American military operations against the insurgency are counter-productive; and that it will be very difficult to win this war within a reasonable period of time? Does not the new Iraqi constitution, if it is accepted, give a golden opportunity for the Iraqis to take control of their own destiny, whatever the risks—because they will have to do that at some time—and for British troops, who have behaved with huge distinction, to depart with honour?

Lord Drayson: My Lords, I agree with a number of the points made by the noble Lord. Before answering his questions, I regret that I must inform the House of the tragic death last night of one of our soldiers in Iraq. I know that the whole House will want to join me in expressing our deepest condolences with the soldier's family.
	We do not agree that the presence of our troops alongside our coalition partners in Iraq feeds the insurgency. On the contrary, we believe that our presence is essential to help Iraq develop towards a democracy. The people of Iraq have again shown this weekend a real commitment towards that. I agree with the noble Lord that, following the vote this weekend, a clear opportunity is presented to the country through the political process. We should take real comfort from the fact that the impressive operations that took place over the weekend to create the environment in which the referendum on the constitution could take place. That was done through the leadership of the Iraqi security forces.

Lord Garden: My Lords, we on these Benches associate ourselves with the expression of condolence to the family of the soldier so tragically killed in Basra last night.
	When considering how to undertake successful military operations, every textbook says that you need a clear political objective that the military can follow. Can the Minister tell us what is that clear political objective of the British Government? Is it putting democracy in place—in which case, was the Foreign Secretary correct last week when he said on "Newsnight" that that would take five to 10 years?

Lord Drayson: My Lords, our political objectives are clear. They are to move forward such that the political control of Iraq is in the hands of the Iraqis; to move forward to the point where the Iraqi security forces are capable themselves of ensuring the security of their country—as I said, we saw some evidence that we are making real progress on that—and, most importantly, to move forward to the point where it is clear to the people of Iraq that the economic and social progress of the country is making a difference to their lives. Our presence there is undoubtedly helping that process.

Lord Foulkes of Cumnock: My Lords, on the deployment of troops in Iraq, will the Minister give much greater weight to the views of the government of Iraq than to some of the voices from the Benches opposite? Is he, like me, mildly disappointed that some people opposite tend to concentrate on perceived problems in Iraq, instead of celebrating the successes—such as the recent turnout in the referendum, which was greater than we had in our general election?

Lord Drayson: My Lords, I thank my noble friend for the points that he makes. It may be useful for me to cite the words of President Talabani himself in a recent press conference. He said:
	"To those who are calling for a pull out of the troops from Iraq, I say we too want to see an end to the presence of the multinational force, but the actions of the terrorists are keeping them there'".
	It is important for us to ensure that we maintain a balance in the debate that we have on this vital subject. I do not want to give the impression of a rosy picture. Quite the contrary, the challenges that we face and that we ask our Armed Forces to deal with in Iraq are significant. None the less, as my noble friend mentioned, it is true that we are making progress. Last week, I talked about how that is making a difference to the people themselves. It is important for us to talk about that as well.

Lord Hurd of Westwell: My Lords, can the Minister clear up one point? Is it Her Majesty's Government's policy, as the Prime Minister and the Foreign Secretary seem to have been saying, that our British troops will stay in Iraq so long as the Iraqi Government require it, regardless of the nature of that government or their policies? Will he confirm what most of us have always supposed to be the position, that the deployment of Her Majesty's forces overseas is and will remain a decision for Her Majesty's Government?

Lord Drayson: My Lords, the noble Lord makes a very good point. The disposition of our Armed Forces is absolutely under the sovereign control of Her Majesty's Government. None the less, we have been asked questions about our objective in Iraq. The objective is clear: it is to remain in Iraq in support of its transition towards democracy, in so far as we are asked to by the Iraqi Government, as that Government goes through the political process they are now undertaking.

Lord Inge: My Lords, the Minister said in his earlier statement that certain conditions had to be met. It may be an unfair question to ask him to give those conditions now, but I would welcome being informed of what they are. Is the Minister prepared to write to me?

Lord Drayson: My Lords, I am happy to answer the noble and gallant Lord's question. The conditions to enable us to draw down from Iraq and to transfer responsibility for security to the Iraqi security forces are handled within the Iraqi Joint Committee to Transfer Security Responsibility. That committee has set out four broad categories. I shall briefly list them: assessment of the threat level posed by the insurgents; the ability of the Iraqi security forces to take on the task; the capacity of the provincial bodies to cope with the changed security environment; and the posture and support that the coalition forces are able to give.

United Nations Convention on the Rights of the Child

Lord Roberts of Llandudno: asked Her Majesty's Government:
	When the United Nations Convention on the Rights of the Child will be ratified in full by the United Kingdom.

Baroness Crawley: My Lords, the United Kingdom ratified the United Nations Convention on the Rights of the Child on 16 December 1991. It came into force in the UK on 15 January 1992. The Government are committed to bringing their legislation, policy and practice into accordance with the standards set out in the convention. The next UK progress report is due to be submitted to the UN by 15 July 2007.

Lord Roberts of Llandudno: My Lords, I thank the Minister for that reply, although it is not a reply that I welcome. We have such concern for children who are the victims of tsunamis, hurricanes and earthquakes—our hearts bleed for them—and yet there are things we could do, by fulfilling our obligations under the convention, which would safeguard children. For instance, 16 year-olds are being deployed in the Army—

Noble Lords: Question!

Lord Roberts of Llandudno: I am sorry, my Lords, I am about to ask the question. Does the Minister agree that the three elements we have not fulfilled—that is, those relating to asylum-seeking children, to children in adult prisons and to children deployed in the Army—merit immediate consideration?

Baroness Crawley: My Lords, I am very happy to answer the noble Lord. We, like him, are passionate that we should ratify the convention as soon as possible. We have two reservations left; in regard to the one on asylum seeking we believe that we honour the spirit of the convention in relation to the standards of care and treatment available to children in the UK, including asylum-seeking children. But we have no plans, as yet, to review our decision to maintain our reservation in respect of those immigration matters. I am afraid the noble Lord will be disappointed in that respect.
	As to children in custody, we are moving as quickly as we can to a position where children are separated from adults in secure accommodation. The noble Lord will know, because of his interest in this matter, of the steps we have taken in order to do that. So, in the medium term, we hope to be able to withdraw the reservation about custody and accommodation.
	As to the issue of the Armed Forces, by recruiting people under 18 the Armed Forces provide valuable and constructive training and employment for many young people but we are aware of our duty of care.

Baroness Massey of Darwen: My Lords, can my noble friend say which other countries are not fully implementing the United Nations convention and what the problems are with the implementation?

Baroness Crawley: My Lords, as my noble friend will know, this country has ratified the convention but I understand that the United States and Somalia have not.

Baroness Morris of Bolton: My Lords, with regard to children coming into our country, if the Government's reservation to the United Nations Convention on the Rights of the Child cannot be removed, can the noble Baroness say whether she thinks there should at least be a statutory code of practice to ensure that asylum-seeking and immigrant children receive the essential services they need during their detention?

Baroness Crawley: My Lords, on asylum-seeking children, we should be judged on what we actually do, which is to ensure that the level of support for children in this situation as part of an asylum-seeking family is identical to that provided for children in families on income support.

Baroness Walmsley: My Lords, is the Minister aware that in July this year the Council of Europe Committee on Social Rights found the UK to be in breach of Article 17 of the European Social Chapter because there is no prohibition in legislation of corporal punishment of children in the home? The Minister will be aware that this is in contravention of Article 19 of the UN Convention on the Rights of the Child. When will the UK Government fully implement what they have signed up to already and join the other 16 members of the Council of Europe, which give children equal human rights on this matter?

Baroness Crawley: My Lords, on the issue of reasonable chastisement, the noble Baroness will know, because of her interest in the debates we have on this, that anything a court would consider to be common assault or worse has always been against the law. The reasonable punishment defence which can be tested in court can be used against the least serious category of assault charge. We believe that prosecuting parents for a light slap will not help children or their parents.

Baroness Howe of Idlicote: My Lords, given the fairly dramatic increase in the number of children in young offenders' institutions which has been reported recently, can the noble Baroness say more about what the Government intend to do to ensure that they are not kept in prison? I refer not just to the increase in the number of young men in such institutions, but also to the considerable increase in the number of young women. They all appear to have severe additional problems, such as mental health or drug problems but are not in the right place to have them dealt with.

Baroness Crawley: My Lords, when the United Kingdom entered the reservation about children in secure accommodation in 1992, it was against the background of not mixing in custody those under and over 18, but there was no separate juvenile custodial estate to be able to do that then. There is now separate accommodation for boys, which was established in April 2000, and all girls under 17 were removed from Prison Service accommodation in January 2004. There is a new programme to provide separate accommodation for 17 year-old girls.

Universities and the Workplace

Baroness Buscombe: asked Her Majesty's Government:
	What steps they are taking to ensure that graduates are equipped with the requisite skills to enter the workplace.

Baroness Crawley: My Lords, we are proud of the performance of British graduates in making a significant contribution to the country's economic growth. The skills strategy White Paper, Getting on in business, getting on at work sets an ambitious agenda to meet the skills needs of the economy and employers and the employability needs of learners.

Baroness Buscombe: My Lords, I thank the Minister for her reply, but does she share with Sir David Normington, the newly ex-Permanent Secretary at the DfES, sympathy for the frustration of employers and the CBI who are fed up with graduates lacking basic literacy and numeracy skills? Whatever the Government have told us about their investment in literacy and numeracy in our primary schools, will the Minister confirm that our graduates of the future will not be better equipped for the workplace? Thanks to a Tory researcher asking the right questions about figures the Government clearly did not want to publish, we now know that nearly half of all children do not even have a basic grasp of reading, writing and arithmetic when they leave primary school? Will the Minister accept that we want to support all efforts that genuinely deliver skills, not just more warm words and empty promises?

Baroness Crawley: My Lords, I do not accept the figures that the noble Baroness has put in front of us today. Of course, many organisations will have challenges in respect of skills and standards, and government departments are not immune. However, the point that Sir David was making—the noble Baroness quoted Sir David—is that standards are improving. The Government are working to make sure that that improvement continues. I will offer the example of key stage 2: since 1998, there has been a 14 per cent improvement in the number of pupils achieving their target levels in English and a 16 per cent improvement in those achieving their target levels in mathematics. If that is systematic failure, my name is Rumpelstiltskin.

Lord Davies of Coity: My Lords, will my noble friend address the nature of the Question, which is about equipping graduates with the requisite skills? I do not want to get into a discussion about primary school literacy, although I do not agree with the speaker from the Opposition Benches. When people go to university, they should be learning skills that equip them for industrial activity. That should be what is happening. However, it seems to me—I hope that the Minister will agree—that our problem is not with graduates but with the lack of apprentices in industry to do the job that is required.

Baroness Crawley: My Lords, I agree with a great deal of what my noble friend said. I think that I can assure him that, when it comes to getting the match right between what graduates are offering and what employers require, a great deal of work is being done. Engagement between employers and universities is very high on our agenda at the moment. My noble friend will know about foundation degrees where employers get involved in the composition of the degree. Those are very important. The number of foundation degrees has increased from 4,000 a few years ago to 38,000 today and will continue. Those are very important points when we look at these skills gap and how we are approaching it.

Baroness Sharp of Guildford: My Lords, will the Minister agree that it is not the function of the Government to micromanage the universities and tell them what they should be doing? Will she also agree that, in so far as there are failures in basic skills, that is a matter for the primary and secondary school sectors which perhaps the Government have sought to micromanage, not always successfully?

Baroness Crawley: My Lords, I very much agree with the noble Baroness's point about progression. It is obviously important that we tackle it not only at higher education level but right from the early years upwards. That is going on, as I said in my supplementary answer to the noble Baroness, Lady Buscombe. However, the evidence is clear. After three years, 80 per cent of our graduates are in employment. That is the evidence, so something must be going right.

Baroness O'Neill of Bengarve: My Lords, would the Minister accept that less is going right than may appear to those who are too trusting in scores of points at A-level and A-C passes at GCSE? Will she also accept that much opportunity has been lost by staying with an option-based secondary school curriculum, which allows game playing and permits pupils and schools to avoid some of the skill-based subjects that would improve graduate skill levels?

Baroness Crawley: My Lords, I listened very carefully to what the noble Baroness had to say. She has an enormous amount of experience, and I shall certainly consider her concerns and perhaps I could write to her.

Lord Forsyth of Drumlean: My Lords, does the Minister accept that in the real world what is happening is that many people are emerging from universities as graduates, unable to get jobs because the courses that they have done and the standards that they have achieved are frankly not in line with what is available in the market place, and that those youngsters have been cheated because they should have been encouraged to go into vocational education and not university education? The root of the problem is that this Government have set a target for the number of people whom they wish to be graduates, whereas they should set a target for the number of people who are best equipped with the skills to meet their abilities.

Baroness Crawley: My Lords, for all the reasons that I gave earlier, I do not accept the premise of the noble Lord's accusations.

Lord Howarth of Newport: My Lords, does my noble friend accept that of course it is important that graduates have the skills requisite to enter the labour force but that also universities are about much more than being simply annexes to the economic production line?

Baroness Crawley: My Lords, I absolutely agree.

Lord Rotherwick: My Lords, earlier the Minister gave us a figure of 80 per cent of people at universities gaining degrees. Does that figure take into account the drop-out rate from universities?

Baroness Crawley: My Lords, I am very pleased to say that we have one of the lowest drop-out rates from universities of any country in Europe.

Identity Cards Bill

Brought from the Commons; read a first time, and ordered to be printed.

Business of the House: Grand Committee Motion

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the following Motion be referred to a Grand Committee:
	The Lord Hunt of Chesterton—To move, That the Grand Committee do consider the Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 (S.I. 2005/2042). [8th Report from the Merits Committee].—(Baroness Amos.)

On Question, Motion agreed to.

Equality Bill [HL]

Report received.
	Schedule 1 [The Commission: Constitution, &c]:

Lord Falconer of Thoroton: moved Amendment No. 1:
	Page 55, leave out lines 12 to 14 and insert—
	"(1) In appointing Commissioners the Secretary of State shall—
	(a) appoint an individual only if the Secretary of State thinks that the individual—
	(i) has experience or knowledge relating to a relevant matter, or
	(ii) is suitable for appointment for some other special reason, and
	(b) have regard to the desirability of the Commissioners together having experience and knowledge relating to the relevant matters.
	(2) For the purposes of sub-paragraph (1) the relevant matters are those matters in respect of which the Commission has functions including, in particular—"

Lord Falconer of Thoroton: My Lords, the group of amendments in my name will considerably strengthen the independence of the commission from government. Noble Lords will have noticed that there is a mistake in Amendment No. 1, which says,
	"leave out lines 12 to 14".
	It should read,
	"leave out lines 12 to 15".
	I hope that noble Lords will be willing to proceed on the basis that that is the correct amendment. I am very grateful to the noble Baroness, Lady Miller of Hendon, and the noble Lord, Lord Lester, for nodding assent to that. With the leave of the House, we shall proceed on that basis.
	With the agreement of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Turner, I should also like to speak to Amendments Nos. 2, 3 and 6, which are in their respective names in this group, as well as all the supplementary amendments to Amendment No. 1. I know that this was a matter of considerable concern to noble Lords from all sides of the House when it was debated in Committee. I am particularly grateful to the noble Lord, Lord Lester, for his careful and considered contributions to that debate and to the persuasive arguments put forward by the noble Baroness, Lady Miller.
	During Committee, the noble Lords, Lord Lester and Lord Goodhart, proposed an alternative model to the classic non-departmental public body framework on which the constitution of this commission is based. There was a long, lively and high-quality debate about the merits and flaws in such a model, and my noble friend Lady Ashton invited representations on other alternatives as a way of addressing those very real and important concerns. Officials and colleagues worked hard over the summer to consider other appropriate alternatives. On balance, however, we have found the non-departmental public body framework to be the most appropriate model; it is tried, tested and well understood. However, that does not mean that we have failed to be persuaded. The amendments in this group, in my name, seek to address a number of concerns, which I shall briefly explain.
	We have sought to ensure that the Bill makes crystal clear that the Secretary of State can make appointments only based on merit unless he has some other special reason for doing so. It would be implicit therefore that, were the Secretary of State to invoke some special reason, he would be required to explain that reason clearly.
	I believe this amendment will ensure that those appointed to the commission will—except in the most exceptional circumstances—have secured those appointments based only on their ability to meet the criteria set out in the Bill; namely, knowledge or experience in the named areas of discrimination, in human rights or in other matters relevant to the functions of the commission. The functions of the commission include knowledge or experience of business, trade unions and the public sector.
	Amendments Nos. 2, 3 and 6 in the names of the noble Lords, Lord Ouseley and Lord Adebowale, and the noble Baroness, Lady Tuner of Camden, seek further to ensure that there is gender balance, that at least half of the commissioners have personal or direct experience of discrimination, and that a quarter of commissioners are of a black or minority ethnic background. While I fully support the sentiments behind these amendments, we must take care to strike the right balance between providing the commission with sufficient flexibility and independence to determine its own affairs and taking measures that within the core principles of the commission are statutory and binding. We have already provided strong guarantees that knowledge and experience of discrimination and human rights should be criteria for appointment and we have further strengthened the appointments process to ensure that appointments are made, except in special circumstances, only on the basis of that knowledge or experience. I very much hope that, when the commission is appointed, its make-up will broadly reflect the balance that these amendments seek to secure but I do not feel that it is an issue on which we should legislate. I very much hope that the noble Lord will withdraw those amendments.
	I turn to the issue of funding. A number of noble Lords spoke in Committee with great passion and concern about the need to ensure the commission's independence by providing some security about its funding. Amendment No. 16, which sets out the obligations on the Secretary of State in relation to the commission's funding, replaces the term "appropriate" with "reasonably sufficient" which I believe addresses the spirit and intent of those concerns legitimately raised by noble Lords in Committee, strengthening therefore our commitment to provide fully adequate funds for the commission to carry out its work.
	As far as possible Ministers will seek to provide, through the non-departmental public body framework, the funding the Commission for Equality and Human Rights will need to implement its strategic plan. It will also inevitably be determined to some extent by the overall state of government finances and spending priorities. This is both pragmatic and fair, recognising government's responsibility to ensure that public spending offers value for money, efficiency and efficacy.
	We have already indicated that our working assumption is an annual budget of around £70 million when the new commission is fully operational, which, as noble Lords know, represents a 43 per cent increase over the combined budgets of the existing commissions.
	In moving these amendments I believe that we have honoured the spirit and the intent behind many of the concerns expressed by noble Lords in a way that does not risk or undermine the non-departmental public body framework.
	We are also proposing to introduce a new duty on the Secretary of State to have regard to the desirability of the commission operating with as few constraints as reasonably possible in determining its activities, timetable and priorities. This duty will further underwrite the commission's independence in determining and implementing its plans and activities on which it will, of course, be required to consult widely. We believe that this greatly strengthens our commitment to the commission's independence and I invite noble Lords to support it.
	Many noble Lords expressed concerns at the number of provisions—too many in their view—that enabled the Secretary of State to direct the commission's work. Many noble Lords felt that was an inappropriate constraint on the commission's independence, and we agree. These amendments therefore remove the Secretary of State's direction-making powers in respect of advising on the effect of existing or forthcoming legislation; undertaking inquiries and investigations; and making assessments of performance under the public sector equality duties.
	There may well be occasions where it will be appropriate for the Secretary of State to invite the commission to make its expertise available through advising on the law, or conducting inquiries, investigations or public sector assessments into particular issues of public interest. I would expect the commission to look positively at such requests, but such agreement is better reached through constructive working relationships between the Secretary of State and the commission rather than through the use of compulsory powers.
	The amendment related to codes of practice limits the Secretary of State's direction-making power in respect of preparing codes of practice. The direction-making powers here can be exercised only on matters likely to be the subject of forthcoming legislation and that the Secretary of State expects to include in the commission's remit. For example, if the Government were to bring forward a single equality Act, as we intent to do in this Parliament, the Secretary of State would be able to direct the commission to start the work to prepare a code of practice while the legislation was making its way through Parliament. Without such a direction, the commission would have no powers to do that, as the new legislation would not yet be listed in the commission's remit. In this way, the code of practice can be available at the time when the legislation is enacted and not several months afterwards, which is a benefit for employers and service-providers who may be required to comply with the legislation.
	Amendment No. 34 responds to concerns raised by the noble Lord, Lord De Mauley, in Committee. He made a strong case for greater transparency before Parliament with respect to the commissions' strategic plan. I hope that he will share my confidence that Amendment No. 34 addresses the issue that concerns him. The commission, unlike its predecessor bodies, will be a commission for all working across many different interests and communities. It is required to consult widely and in a meaningful way on its strategic plan. In other words, it must listen to, consult on, and hear the concerns and aspirations of its many constituencies so that it is as open and transparent as possible about how it determines its priorities. It is therefore right that such a document, drawing on the experiences, hope and concerns of those including, but going beyond the obvious interests, should be made available to the Secretary of State and to Parliament. After all, the Secretary of State is ultimately accountable for the new commission, and we in Parliament should be afforded an opportunity to comment and question the Government on the commission's priorities.
	Taken together, this set of Government amendments is a powerful package of measures to strengthen the commissions' independence. We listened carefully to the concerns expressed in the House and elsewhere, and we have responded. I commend the amendments to noble Lords. I beg to move.

Lord Brabazon of Tara: My Lords, I point out that because of pre-emption if this amendment is agreed to I shall not be able to call Amendment No. 2.

Lord Lester of Herne Hill: My Lords, this Bill is a core commitment of Liberal Democrats, and therefore we share entirely the Government's objective of securing the speedy passage of the Bill provided it is fit for purpose. As I said at Second Reading, one of the problems that the Government have had in managing the Bill is that responsibility is spread over so many different departments. That has required an unusual degree of co-ordination with Ministers looking over each others' shoulders and their officials doing the same. I hope that it does not harm the future career of the noble Baroness, Lady Ashton, if I say that in my dealings with her this summer and autumn she has shown quite extraordinary open-mindedness and skill in listening, and she and her team in responding, to all the points put by all of us in the earlier debates. I really think that without her as midwife, if that is the right profession, we would not be where we now are.
	I also while expressing my gratitude would like to take the unusual course of naming a particular public officer, the parliamentary counsel dealing with this, Daniel Greenberg, who has been imaginative in dealing with the real concerns that we have had rather than theoretical concerns. It has therefore been an enormous pleasure to see what we attempted to do ineptly in putting down our amendments about independence translated into the real safeguards that have been described by the noble and learned Lord the Lord Chancellor in ways that I do not need to repeat. We on these Benches are entirely happy with what is a powerful package of measures to strengthen the commission's independence compatibly with its status as a non-governmental organisation. We realise that "independence" was inconsistent with that status, but what is imaginative about the measures is that they address the real problems about transparency, merit appointment, no unnecessary ministerial interference, and a ministerial duty not to be bossy except in extreme cases. All that is embodied in the package.
	Several noble Lords present who have been on equality commissions in the past as distinguished chairs or deputy chairs—I am thinking particularly of the noble Baronesses, Lady Lockwood and Lady Howe of Idlicote—will realise that the measures are a great improvement on the situation of the Equal Opportunities Commission, the Commission for Racial Equality or the Disability Rights Commission. Therefore, we fully support the package. Much as we understand why the noble Lord, Lord Ouseley, and other colleagues seek to add other amendments, for the reasons given by the noble and learned Lord the Lord Chancellor we believe that this package is the most satisfactory outcome. We are rather against silo thinking—that is how the noble Baroness, Lady Ashton, put it at one stage—and like a holistic approach not cluttered by too many mechanistic solutions. Therefore, we fully support the amendments.

Lord de Mauley: My Lords, we are grateful to the noble and learned Lord the Lord Chancellor. We are content with the package of measures, particularly the increase to transparency. I join the noble Lord, Lord Lester, in his compliments to the noble Baroness, Lady Ashton, for her work to agree a consensus.

Baroness Turner of Camden: My Lords, I thank my noble and learned friend for his explanation of the government amendments. It is of course important to ensure that the commission is broadly representative of the people about whom it is concerned. In Committee, I tabled an amendment designed to ensure that trade unions and business interests representative of managements should be represented. That is because the work of the commission will undoubtedly be concerned with employment. The amendment did not attract government support and was withdrawn.
	I put my name to Amendment No. 2 because it was concerned to ensure that the commissioners had personal or direct experience of discrimination or prejudice. I hoped that that would therefore cover the important area of employment. I listened carefully to what my noble and learned friend said in moving the government amendment, and I hope that it will have that effect and that the issue of employment will be adequately protected when the commission starts its work.
	I applaud what the Government have done in relation to the separate arrangements for disabled people, but it is important to ensure that all sections of the community that will be concerned with the work of the commission feel that they will be adequately represented by the way in which the commission is constituted. They have to have confidence in the commission, to which they will look for support. Therefore, I hope that the amendment will ultimately have that effect.

The Duke of Montrose: My Lords, Amendment No. 3, tabled by the noble Baroness, Lady Turner, deals with the appointment of commissioners, among whom is a commissioner for Scotland. I am afraid that those noble Lords from Scotland are not all present today, but we are certainly grateful for the attention paid by the Government to some points that we have raised before and how they have dealt with them.
	Paragraph 2(2)(b) deals with the Scottish commissioner. Will the Minister confirm my understanding that equality of race, sex and disability are matters for the whole UK, and that it is probably only in human rights that there are devolved implications? At the same time, I understand that the Scottish Parliament is currently considering a Scottish Commissioner for Human Rights Bill. Is it the Government's intention that that Bill will enable the appointee under the Equality Bill to carry out functions in Scotland, whether the same man takes up the functions or a separate commissioner is to be appointed in Scotland to act on devolved equality issues?

Lord Ouseley: My Lords, I have listened carefully to the noble and learned Lord the Lord Chancellor speaking to his amendments and I was considerably moved by the attempts to give greater independence to the commission. That was a major concern particularly in the light of the clear erosion in confidence in existing commissions as a result of perceptions of political manipulation and their failure to challenge those who occupy powerful positions—such as Secretaries of State who may admit to direct, deliberate and unlawful sexual discrimination—and when nothing is done and no challenge is made. How does that give confidence to victims of discrimination that the commissions are operating independently, effectively, purposefully and on behalf of the victims?
	So I welcome a package of measures that will give greater strength to the way in which this commission will be seen as independent. However, I do not believe that the proposals on the appointment of commissioners move us far enough towards a more representative commission. The noble and learned Lord the Lord Chancellor has shown movement in bringing forward Amendment No. 1. However, I should have thought that his description about making appointments only on the basis of merit already described how we make appointments—only on the basis of merit. I hope that we are not saying that in future, and in this case, we will seek to make appointments on merit. I thought that that was an automatic and essential criterion.
	I should also have thought that knowledge and experience of discrimination and human rights were essential requirements for anyone to have even a remote possibility of being considered for appointment as a commissioner. Amendment No. 1 is too vague to achieve the range of representativeness necessary for a body such as this. The body we are seeking to create is important because it will handle all our affairs on equality and human rights.
	Five major points are important in achieving an effective commission. It must have good law to work with. We are still awaiting it and are promised it, and we hope that it comes sooner rather than later. It must be independent, competent and confident as well as accountable. It must have the confidence of the public in its work. It must be effective in its law enforcement—which is not happening at present, and I am not certain that the entirety of the proposals will enable it. Finally, there needs to be demonstrable evidence that the commission is making a difference in achieving the goals of equality, fair treatment and human rights.
	If we are to achieve a more representative commission, we must see proposals for balanced appointments alongside the criteria of relevance to the purpose of the commission, as well as appointment on merit. The Bill rightly provides specifically for the appointment of a commissioner who is disabled. In fact, the noble Lord, Lord Carter, has already appropriately articulated that there probably should be more than one such commissioner. I do not think that there is a problem with that at all. The noble Baroness, Lady Turner, has argued appropriately for the representation of trade union and employer business interests. That also can be accommodated within the proposals for representativeness. But—I am afraid that I do not accept what has been articulated so far—the Bill remains silent on the issue of representation from all other strands of discrimination and interest groups.
	The amendments put forward to achieve a commission composed half of women and a quarter from a black and ethnic minority background as a statutory requirement would, we believe, remedy that serious anomaly. If it is argued, as it is, that to impose such a strict requirement would impinge on the independence and flexibility of the commission to make its own decisions, why have we already imposed a requirement for the appointment of a commissioner with a disability?
	The commission needs to be effective and we have to get it right first time. There is no point in having a toothless talking shop of experts without empathy or identity, and part of the notion of representativeness is to achieve that. We want to see independent, competent and non-politically aligned commissioners who are prepared to challenge and root out all aspects of unlawful discrimination and thus promote confidence in relations across all groups of people through engagement and empathy. We do not want to see people sitting in their CEHR towers among other out-of-touch metropolitan elites. We want competent commissioners who are in touch with the realities of the experience of discrimination and exclusion, and I am afraid that the notion of merit will not necessarily enable us to achieve that because it has not enabled us to achieve it so far.
	The present proposals are inadequate and unacceptable. They will fail because they will cause resentment relating to inequality and treatment which is perceived as favourable as well as unfavourable, and they will create conflicts among commissioners. We need to resolve those issues before they emerge. In my view and, I know, in the view of many stakeholders in the business of equality, fairness and diversity, the best way forward is to create a visibly representative commission that is competent, confident, independent, accessible and reflective of our diversity. If we cannot do that now, when will we ever achieve such a goal? The commission should set the standard for equality, fairness, human rights and visibly representative diversity.

Baroness Lockwood: My Lords, I am sorry that I have to disagree with the noble Lord, Lord Ouseley, whose period as chairman of the Commission for Racial Equality overlapped for a time with my period as chairman of the Equal Opportunities Commission. However, given the nature of the new commission and the number of strands that it will have to cover, I think that the recommendations in the amendments put forward by my noble and learned friend the Lord Chancellor give the commission the best possible chance of attaining a balanced membership, as opposed to the proposals in the noble Lord's amendments, which could, in effect, take up three-quarters of the total membership of the commission. I know that it is possible for one person to be both a member of an ethnic community and a woman; nevertheless, under the terms of the noble Lord's amendment, it is possible that three-quarters of the commission could be taken up by places allocated not to individuals but to the strands covered by the commission.
	From my experience as chairman of the Equal Opportunities Commission working with two governments, one of each colour, I feel that the commission, and the chairman in particular, should be adequately consulted about the needs of the commission. I feel absolutely confident that that would happen under the proposed new structure. So I thank and support my noble and learned friend the Lord Chancellor for the whole range of amendments that he has brought before us this afternoon. They have my complete support.

Lord Adebowale: My Lords, I support the amendments tabled by my noble friend Lord Ouseley and I take account of the useful comments that the noble Baroness, Lady Lockwood, has just made. We are faced with a real opportunity to increase the confidence of the black and minority ethnic communities in their ability to access justice through this Equality Bill.
	It is worth reminding the House that these amendments tabled by my noble friend Lord Ouseley, supported by myself, are not simply the ideas of my noble friend and me. They come from the 1990 Trust—a well respected policy advice and research organisation which looks into the issues affecting the black and minority ethnic community—the Commission for Racial Equality and the Greater London Authority. None of those bodies has arrived at these amendments overnight. They have consulted widely among the black and minority ethnic communities and have arrived at these amendments with due support for the Government in their attempts to create a credible Equality Bill and a credible mechanism for addressing race within that Bill.
	Turning to the comments made by the noble Baroness, Lady Lockwood, it is possible that three-quarters of the commission could be assigned, but it is also possible that more than three-quarters of the commission could have no representation and therefore no respect from a large majority of the population who, in this day and age, we must engage in the debate on equalities. This House will debate issues concerning terrorism, mental health and many other issues that disproportionately affect members of the black and minority ethnic communities. We owe it to those communities to respect their views on how the Equality Bill will be received by them. I urge the House to think again about how appointments are made to the Equality Commission.
	I reflect on the amendments that the noble and learned Lord the Lord Chancellor tabled. They try to be helpful in this regard, and they are noted as such, but one can drive a coach and horses through what they say. I agree with my noble friend Lord Ouseley that appointments will of course be made on merit, but will they also be made with due regard to the experience of those communities and will they reflect the genuine concerns of the BME community as regards this Bill?

Baroness Howe of Idlicote: My Lords, I have listened carefully to the arguments of my noble friends Lord Ouseley and Lord Adebowale, but the more I look at what is contained in the amendment tabled by the noble and learned Lord, Lord Falconer, the more I believe it really meets what is required. The last thing we want is to be over-prescriptive, but it is quite clear that we need people with knowledge and experience—personal or practical experience—in this area. That is what we are looking for. I believe that this really is a good amendment and I am happy to support it.

Baroness Howells of St Davids: My Lords, I am sure it will be of no surprise to noble Lords to hear that I support the noble Lords, Lord Ouseley and Lord Adebowale. I shall not add to what they have said, but I want to mention to the House a statement made by the Prime Minister. He was surprised that young people born in this country took part in the bombing of this country. I dare to advance to the House the proposition that, when bringing forward something as important as the Equality Bill, unless we show practically that those people are part of the community, we may be in danger of facing more and more incitement to racial hatred.

Lord Falconer of Thoroton: My Lords, I am grateful for all the contributions of noble Lords and for the support given to the Government's proposals to deal with the important issues raised in this group of amendments. I agree with the noble Lords, Lord Lester and Lord De Mauley, on the critical role that my noble friend Lady Ashton has played in relation to this. She has been second to none in the work she has done in achieving agreement on these issues. The one point on which we all agree is that we want to see the Bill go forward in the best possible form. I also agree with the comments of the noble Lord, Lord Lester, on the work of Daniel Greenberg, which has been exemplary.
	I turn to the points raised by the noble Duke, the Duke of Montrose, in relation to Scotland. Equality is a reserved matter and human rights is a Scottish matter. He raised specifically the forthcoming Scottish Human Rights Commission. Our commission created by the Bill will co-operate with the Scottish Human Rights Commission, announced by the Scottish Ministers. Our commission will deal with reserved matters and the Scottish commission will deal with devolved matters. There will be a memorandum of understanding to tie up the loose ends, which are an inevitable outcome of the Scotland Act 1998 to ease potential rubbing points between the commissions and to provide the flexibility necessary in the relationship for efficient and effective human rights coverage.
	I turn to the important and impressive debate between, on the one hand, the noble Lords, Lord Ouseley and Lord Adebowale, and my noble friend Lady Howells of St Davids, and, on the other hand, the noble Baroness, Lady Howe, and my noble friend Lady Lockwood. I completely agree with the definition given by the noble Lord, Lord Ouseley, of what we want the commission to do. It should be competent, confident, independent, accountable and visibly representative. I also completely agree that people who see it must believe that the commission is on their side. However, I disagree with him and agree with the other side that those aims are not achieved by being over-prescriptive on who must be appointed as commissioners.
	The Ouseley/Adebowale amendments say that you must have a particular type of person with a particular type of experience. Our amendments propose that only an individual who,
	"has experience or knowledge relating to a relevant matter, or . . . is suitable for appointment for some other special reason",
	can be appointed. That is sensible. It gives the right degree of focus, but it does not give the degree of inflexibility which I believe, far from promoting the aims we all want, could well lead to a restriction in the delivery of those aims.
	I therefore ask noble Lords to consider whether in the light of the commitment I have given today the terms of our amendment deliver what we all want to achieve. I commend it to the House.

On Question, amendment agreed to.
	[Amendments Nos. 2 to 14 not moved.]

Lord Ouseley: moved Amendment No. 15:
	Page 60, line 34, at end insert—
	:TITLE3:"Greater London Committee
	31A (1) The Commission shall establish a decision-making committee to be known as the Greater London Committee.
	(2) The Commission shall ensure that the Greater London Committee is established before any of sections 8 to 13 come into force (to any extent).
	31B The Commission shall appoint as the Chairman of the Greater London Committee a Commissioner appointed for the purpose of satisfying paragraph 2(2)(ca).
	31C The Commission shall appoint each member of the Greater London Committee for a period of not less than two years or more than five years, subject to the possibilities of—
	(a) reappointment, and
	(b) dismissal in accordance with the terms of appointment.
	31D The Commission shall, in appointing members of the Greater London Committee, ensure that the Committee includes—
	(a) persons no fewer than half of whom have personal or direct experience of one or more of the causes of discrimination or prejudice referred to in sections 10 and 11(2),
	(b) not less than one person who is (or has been) a disabled person,
	(c) persons no fewer than one half of whom are women, and
	(d) persons no fewer than one half of whom are from a black or other ethnic minority background.
	31E The Greater London Committee shall advise the Commission about the exercise of its functions in so far as they affect Greater London.
	31F Before exercising a function in a manner which in the opinion of the Commission is likely to affect persons in Greater London, the Commission shall consult the Greater London Committee.
	31G (1) The power under section 14—
	(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as its exercise, in the opinion of the Commission, affects Greater London, and
	(b) to that extent shall not be exercisable by the Commission.
	(2) Sub-paragraph (1) does not apply to the power under section 14 in so far as it is treated as delegated to the Disability Committee in accordance with paragraph 52.
	(3) Sub-paragraph (1) shall not prevent the Commission from making arrangements under section 14(1)(d) or (e) for the provision of advice or guidance to persons anywhere in Great Britain.
	31H (1) The power under section 12(2)(c)—
	(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as it concerns the giving of advice to devolved government about enactments which, in the opinion of the Commission, affect only Greater London, and
	(b) to that extent shall not be exercisable by the Commission.
	(2) The power under section 12(2)(d)—
	(a) shall be treated by virtue of this paragraph as having been delegated by the Commission to the Greater London Committee in so far as it concerns the giving of advice to devolved government about proposed changes in the law which, in the opinion of the Commission, would affect only Greater London, and
	(b) to that extent shall not be exercisable by the Commission.
	(3) Sub-paragraphs (1) and (2) shall not apply to the power under section 12(2)(c) and (d) in so far as they are treated as delegated to the Disability Committee in accordance with paragraph 52.
	31I In allocating its resources the Commission shall ensure that the Greater London Committee receives a share sufficient to enable it to exercise its functions."

Lord Ouseley: My Lords, Amendment No. 15 establishes a decision-making committee to be known as the Greater London Committee. It follows the same principles as the previous debate on representativeness in as much as it seeks to prescribe what the commission should be doing.
	The Equality Bill is relatively silent on how the Commission on Equality and Human Rights will have a regional presence and relate to existing regional structures. Once again, I point to the anomaly that the Bill specifies responsibilities for Scotland and Wales but does not recognise other existing regional arrangements. It does not state how the commission will align itself with such arrangements. In the context of London, particularly Greater London, we are talking about the most ethnically and culturally diverse capital city in the world. Its uniqueness is characterised by an elected mayor with statutory responsibilities and duties on equality that are exceptional and warrant a parallel recognition of London's importance alongside those of Scotland and Wales, notwithstanding the fact that they are nation states.
	We have to address, however, the demography of Greater London, and the fact that it is seen as a place the world comes to. London's diversity is recognised globally. What undoubtedly captured the world and made 2012 a reality for London was its cultural, global and ethnic diversity. It was the nap hand that won the Olympics for us. Our culture of diversity is second to none. Even in the United States and Canada, two countries that see themselves as advanced in the area of promoting ethnic, racial and gender equality, they look at the work we do in this capital city and sometimes marvel at it. Notwithstanding the fact that we still have much to do, we have achieved a great deal in the way we have organised coherently, with that statutory responsibility placed on the Mayor of London, to bring about a real engagement with the communities, and we have sought to parallel the concerns to achieve outcomes related to the needs of the different groups of people represented in this city.
	Of course there is great complexity, but we look to London for its leadership role, not only in managing equality in the Greater London area, but also how the city becomes an exemplar for other countries. There are times when people see London as overexposed and, because of its resources, diversity and profile, wanting to tell others how to do things. This is clearly not the case, because what happens in London cannot happen elsewhere. We are as unique as every other part of this great nation is unique. Rural racism, and how we address that, is quite different from racism in the urban environments, such as estates. That is an important part of our diversity.
	There is a lot to learn from the way in which we bring about greater cohesion, notwithstanding the wide range of problems. This amendment would enable us to see the commission establish, as a requirement, a Greater London committee with similar decision-making responsibilities as Scotland and Wales, aligned to the statutory arrangements that already exist for Greater London, and which the CEHR will have in place along with those for Scotland and Wales. I beg to move.

Lord Lester of Herne Hill: My Lords, maybe it is because I am a Londoner, but I think the headquarters of the new commission should certainly be based in London. If there were an amendment raising that issue I would be sympathetic. I have to admit, however, that I start with a certain bias against this amendment, because the Mayor of London, Mr Livingstone, has been opposed from the beginning to a single commission. I think he was entirely mistaken in that.
	Secondly, there is a problem with what I would call "me too-ism". In my Equality Bill, I made a major concession to the disabled by creating a disabled committee of the commission. I did that for obvious reasons, not the least of which was that disability discrimination had been made unlawful only relatively recently and, yet, we were to lose the Disability Rights Commission. However, once you establish a disability committee, you get demands for a race committee or, as now, a demand for a Greater London committee or sub-committee or sub-sub-committee.
	I ask those in favour of the amendment to reflect for a moment on the new commission. It will have to deal with all the main strands of discrimination in promoting equality. It will also have to deal with the entire human rights area. It must, as we have heard, be able to reflect the knowledge and experience of people in all those areas, and it must act as a college, a collegiate and holistic body, without turning into different factions or sectional interests. It is not for Parliament to dictate to the new commissioners, who will lie on a bed of nails when they start on the new commission. They have much difficult work to do. It is not for us to dictate a committee structure of any kind to them. It seems to me that the right thing to do is to choose the right people, the right senior staff, and leave it to them to decide how to exercise their responsibilities.
	I say to my old friend, the noble Lord, Lord Ouseley, that I strongly oppose the philosophy behind this amendment, as I opposed the previous amendments. It would lead to Balkanisation and would lead to Greater London being treated as a country, as though it were Scotland, Wales or Northern Ireland. Although, as I said, I am a proud born, bred and raised Londoner, I do not think that we can elevate ourselves in that way. No doubt, London is one of the most important cities in the country. It is the capital, and it should be the seat of the commission, but it certainly ought not to have a special committee for it, any more than anyone else should.

Lord Adebowale: My Lords, I support the amendment moved by my noble friend Lord Ouseley. I note with interest the comments made by the noble Lord, Lord Lester of Herne Hill, but the Bill ignores one simple fact: London is the window to this country's multi-racial society. There are 300 languages spoken in London; there is no other place in Britain where that is the case. There are London boroughs where the majority of the population—Newham and Brent are examples, and Tower Hamlets is fast approaching—where more than 50 per cent of the population are from a black or minority ethnic group. I find it astonishing that we could have a debate about equality without focusing on the needs of London.
	I do not see how the "Balkanisation" remark could be borne out in fact. London leads on many debates on race and equality, and we are seeking to acknowledge that and build that place for London into the Bill. I thank the noble Baroness, Lady Ashton of Upholland, for her meetings with me prior to Report and for her attempts to square the circle, as it were. However, as she can see and as the noble and learned Lord the Lord Chancellor can see, many in the community are still dissatisfied with the Government's attempts to square the circle. It is an opportunity to underline the Government's commitment to equality and to acknowledge the special place that London has in this country's multi-racial life. I invite the Government to make that acknowledgement by, at least, accepting the need for a London committee.

Baroness Miller of Hendon: My Lords, I do not wish to delay the House and repeat what has been said, but I must say that I agree with the noble Lord, Lord Lester of Herne Hill. Like many other people, I was born and bred in London, and I always want to push London right to the forefront. In an earlier sort of life, I was chairman of the Conservative Party for London, and, to me, London was the thing. However, at the end of the day, we are creating a commission, and that commission has the power to create whatever committees it thinks necessary. It is not appropriate for the House to decide in advance which committees they should be. As has already been said, the commission will include people of great expertise, and they will decide, if they need a committee, to have one.

The Lord Bishop of Chelmsford: My Lords, I am the Bishop of a diocese that has in it five east London boroughs and a large part of Essex. It is important that, in strategies on these matters, the experience of London has an impact on the rest of the community. There is a danger in isolating the London experience in a way that not only disadvantages the rest of the community from tackling the issues but also in the end would disadvantage London.

Baroness Ashton of Upholland: My Lords, I align myself with the comments of the noble Lords, Lord Ouseley and Lord Adebowale, on the central role of London. I agree completely that London is a home of diversity. I am not a born-and-bred Londoner but I have spent more of my life here than anywhere else. I accept completely what noble Lords have said about the importance and value of London's role in achieving the 2012 Olympics, and as a mirror to the world. None of that is disputed. The only question is: who is responsible for determining what committees the new commission should have?
	We have said throughout, in response partly to noble Lords' points, that it is critical that the commission is as independent as it should be and has sufficiently flexible powers to do what it thinks is right. The CRE currently has a committee in London, and the commission may choose to have one there; however, echoing the sentiments of the noble Baroness, Lady Miller, and the noble Lord, Lord Lester, I do not believe that it is right for Parliament to dictate to the commission that it must. I am sure that the commissioners, in looking at our debates as the commission is set up, will be very mindful of what has been said, and that they will discuss the issues with noble Lords who have such amazing experience as the noble Lords, Lord Ouseley and Lord Adebowale. Solely on the basis that it is for the commission to decide, I ask the House to reject the amendments and that the noble Lord withdraw Amendment No. 15.

Lord Ouseley: My Lords, I am grateful to all noble Lords who have participated in this debate on an amendment for a greater London committee. I understand exactly the arguments made all round, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton: moved Amendments Nos. 16 and 17:
	Page 62, line 20, leave out "appropriate" and insert "reasonably sufficient"
	Page 63, line 17, at end insert—
	"(3) The Secretary of State shall have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining—
	(a) its activities,
	(b) its timetables, and
	(c) its priorities."
	On Question, amendments agreed to.

Baroness Ashton of Upholland: moved Amendment No. 18:
	Page 64, line 19, leave out from "before" to end of line 21 and insert "either section 8 or section 11, in so far as they relate to disability, comes into force (to any extent)."

Baroness Ashton of Upholland: My Lords, many noble Lords will recall that, during our debate in Committee on the commission's community duty, noble Lords, particularly my noble friend Lord Carter, and the noble Baroness, Lady Darcy de Knayth, made very strong cases for bringing disability within the mainstream of the Clause 11 provisions, while recognising that disability is different and presents particular challenges. The noble Lord, Lord Lester, the noble Baroness, Lady Falkner, and others also raised concerns in Committee about the definitions of "community" raised in the Bills. Many noble Lords raised concerns about some of the drafting terminology, which, I think, my noble friend Lord Carter described as "unfortunate". My noble friend's concerns were echoed by many outside your Lordships' House who followed the debates and the establishment of the new commission with great interest. I agreed to look at those issues again. This group of amendments is the product of that further work.
	The amendments remove the commission's particular disability duties at Clauses 10 and 20 and bring disability within the scope of its good relations duties in Clauses 11 and 21. Importantly, in doing so they permit the commission to promote or encourage the favourable treatment of disabled people, recognising that the Disability Discrimination Act is alone among our anti-discrimination provisions in that it requires action to be taken for disabled people in order to tackle inequality. Encouraging good practice in the treatment of disabled people is as important an aspect of the Disability Rights Commission's work as it will be for the new commission.
	There was a debate in Committee about how the commission's Clause 11 duties would apply to those who, for example, do not identify with a community, or to those who feel they may belong to more than one community. The amendments also replace the term "communities" with references to "groups" and "members of groups". We believe that these provisions address noble Lords' points, and make it clear that the commission's duties apply to everyone, whether or not they identify as a member of a group or a community.
	The amendments also address the concerns expressed in Committee about some of the drafting of Clause 11. They would replace the references to "sub-class" and "sub-group" with the perhaps less pejorative terms "smaller class" and "smaller group". They will also describe the commission's duty to,
	"work towards the elimination of the involuntary isolation of communities",
	in terms of more positive outcomes—working towards enabling members of groups to participate in society.
	Together, those amendments effect the three broad changes that we seek to make: first, to bring the disability duties within the scope of the commission's generic duty; secondly, to reflect more accurately that both individuals and groups fall within the scope of the commission's good relations duties; and, thirdly, to amend some of the drafting terminology that caused some concern for noble Lords and those outside the House. I beg to move.

Lord Carter: My Lords, we thank the Government, who have come all the way to meet the concerns that we expressed in Committee. Amendment No. 33, which amends Clause 3, retains the key values that disabled people depend on the new commission to promote. We are extremely grateful for that. The large group of amendments, starting with Amendment No. 41 where offending clauses were removed from the Bill, have been brought into the new clause. I am extremely grateful to the Minister. Disability is included in the new commission's duty to promote good relations between members of different groups, which is very important. That reads across to the duty in the Disability Discrimination Act. Under a separate provision, Clause 10 is deleted, as we asked. In addition, that unfortunate phrase "sub-class" is removed and is replaced with the phrase "smaller groups". We will just leave it at that. We are extremely pleased with all of that. We accept it all. It has met all of the concerns that we expressed. I am extremely grateful and thank the Minister.

Lord Addington: My Lords, I echo what the noble Lord, Lord Carter, has said. People who take an interest in disability issues were a little worried at first that we had not got the tone right. I thank the Government for listening on this occasion and for paying attention to the concerns raised, which were based on very solid practical experience. I thank the Minister for listening and I hope that any praise that is given to any Ministers involved does not damn their further careers.

Lord Ashley of Stoke: My Lords, I regard Amendment No. 41 as one of the most important amendments in the Bill. The promotion of equality opportunity is a key to the future for disabled people who have long suffered, for hundreds of years, discrimination. Now, a positive, constructive provision in the Bill for working on the promotion of equality opportunity is a major step forward. No one can say that Ministers do not listen to our representations. Thank you.

Baroness Falkner of Margravine: My Lords, let me say from the outset how very pleased I am that the Minister has been true to her word and has looked again at the definition whereby "communities" were the focus of efforts rather than the many individuals who comprise groups and communities. Those changes are most welcome and will add definitional clarity to the very good intentions behind this clause.
	Amendment No. 47 relates to the principal clause dealing with good relations—that is, Clause 11. I am disappointed that the drafters of new Clause 46 have sought to remove paragraph (d), which placed on the commission the duty to,
	"work towards the elimination of the involuntary isolation of communities".
	The existing clause is flawed. It addresses only the involuntary isolation of communities instead of also recognising that some "voluntary" isolation may also be detrimental to social cohesion.
	I understand that the Government's reluctance to address this issue is that they are concerned not to be seeking integration from those communities who choose the path of isolation as an article of faith or culture. I think that their concern here is mainly for orthodox religious communities. But the effect of my amendment, which covers voluntary and involuntary isolation, would not be to "force" communities or groups who choose isolation to integrate with each other or to integrate in general. It would place on the commission only the duty to "work towards" those aims.
	I would not bring up that clause so late in the consideration of the Bill—it was there and I am sorry to see its removal—but it is important because the Minister has moved some way. As many people have said, the noble Baroness was a very listening Minister. Given the importance of events over the summer, in terms of the isolation and segregation of mainly minority communities—much of the debate today has covered those communities—it is quite surprising to see the removal of paragraph (d).
	At a time when the Prime Minister and Home Secretary are calling for greater integration and buy-in from British Muslims and other minority communities into what they define as British values—I must say that I broadly agree with their aims—it is curious that the department is retreating from those laudable objectives when social cohesion is less good than it might be. Reading the report by the noble Lord, Lord Ouseley, a couple of years ago, for example, and by Ted Cantle, which touch on the detriment to community cohesion from isolation, it is clear that even inadvertently leaving communities to lead parallel lives cannot be good policy, especially as of itself it will not fulfil the new aims of paragraph (d), which is to work towards enabling members of groups to participate in society. So the new clause is not quite sufficient and it would be helpful if, through the amendments, we could reinstate the previous provision again. I hope that the Minister will consider that.

Baroness Ashton of Upholland: My Lords, I am very grateful for all the support. The noble Baroness, Lady Falkner, warned me that she wanted to raise that matter and I am more than happy to look at it again. The Bill is being worked on by several departments; most of it does not belong to this department, it belongs to this ministerial team at the moment. I am happy to talk to the noble Baroness before Third Reading. I think we have achieved what she wants, but I hear what she says and am happy to talk to her.

On Question, amendment agreed to.
	[Amendment No. 19 not moved.]

Baroness Ashton of Upholland: moved Amendments Nos. 20 to 22:
	Page 65, line 9, leave out "20" and insert "21, in so far as it relates to disability"
	Page 65, line 13, leave out "10" and insert "11"
	Page 65, line 13, after "it" insert "relates to disability and"
	On Question, amendments agreed to.
	[Amendment No. 23 not moved.]

Baroness Ashton of Upholland: moved Amendment No. 24:
	Page 65, line 23, leave out "section 10 above" and insert "sections 8 and 11 above, in so far as they relate to disability."
	On Question, amendment agreed to.
	[Amendment No. 25 not moved.]

Lord Carter: moved Amendment No. 26:
	Page 65, line 35, at end insert—
	"( ) In exercising its functions the Disability Committee shall have regard to the views and experiences of mental health service users and those who have used mental health services in the past."

Lord Carter: My Lords, in moving Amendment No. 26, I shall speak to Amendment No. 107. I know that my noble friend Lord Ashley will want to speak to Amendment No. 29. I assure my noble friends on the Front Bench that this is a probing amendment to seek assurances from Ministers that they expect the new commission to follow the example of the Disability Rights Commission in involving mental health service users in its work. That is extremely important.
	I was a member of the Joint Select Committee that considered the draft Mental Health Bill. We took evidence from mental health service users, which brought home to us how important it is that they should be involved in any discussion of the work of the new commission. The DRC has a mental health action group, which has proved to be extremely helpful. We must remember that up to one in six people experiences mental health problems during the course of their lifetime, while 630,000 have severe mental health problems at any time, ranging from schizophrenia to deep depression. We were disappointed during discussion of the Disability Discrimination Act not to persuade the Government to include depression in the definition of disability; we will continue to press on that.
	When I read the briefing on the amendment, I had a strong sense of déjà vu, because we were given those facts during the passage of the Mental Capacity Act and the Disability Discrimination Act and as evidence to the Joint Select Committee on the draft Mental Health Bill. It is worth reminding the House that people with severe mental health problems are twice as likely to die early as the general population. For example, people with a diagnosis of schizophrenia live on average for nine years less than other people.
	I read the Sun—or, at least, the football pages, but little else—but I am told that in December 2001, the Sun had a headline,
	"Nuts to be caged for life by docs",
	and, in June 2002,
	"Psychos to be locked up for life".
	That is the sort of exclusion from society that we want to avoid through all that the new commission does. So those are the reasons for tabling this probing amendment.
	It is important that the group that advises the DRC should also argue that the new commission should give particular attention to those who experience discrimination on multiple grounds. Black and ethnic minority people with mental health problems, for example, are twice as likely to be involuntarily detained under the Mental Health Act as are white people.
	So, for all these reasons, I hope the Minister will be able to give the assurances we seek in relation to this very real problem. I beg to move.

Lord Ashley of Stoke: My Lords, I shall speak to Amendment No. 29, which is in my name, and Amendments Nos. 26 and 107.
	In these early stages of the Bill we have made tremendous progress with the proposals we have put forward on behalf of disabled people. The Government have taken enormous trouble and care to understand the problems of disabled people. We have a fine Bill now, made better by these amendments. I am glad that the Minister—my noble friend Lady Ashton—and the Lord Chancellor have taken on board so many of our suggestions.
	Perhaps I may also say a word about the briefings that we have received. Caroline Ellis of the Disability Rights Commission has briefed all members of the disability lobby—which has made a great deal of work for my noble friend Lady Ashton and my noble and learned friend the Lord Chancellor—and here are the results: Members on all sides of the House advocate changes and improvements. We are grateful to Ministers and for the briefings.
	But without an explicit reference to disabled people as key stakeholders in the five-year review of the Disability Committee's future, there is a possibility—I put it no higher than that—that the views of disabled people will be neglected and ignored. This would be highly dangerous and very damaging and would follow the experience of the past, where they are pushed aside without their specific concerns being considered.
	We heard a great deal a moment ago from my noble friend about mental health sufferers. They have been mentioned extensively but I feel that unless they are referred to specifically in the Bill they, of all people, will be neglected because mental health still has a stigma throughout Britain. My noble friend referred to the Disability Right Commission's mental health action group, which has played a very active and constructive role, but, despite its efforts and the efforts of many people in Parliament and outside, mental health sufferers are still regarded as the lepers of disability; they are still regarded with scorn, contempt and division in many quarters. People who are mentally ill should have an important place in the Bill. I hope the Government will be able to accept our suggestions.
	Perhaps I may say a brief word about the Transitional Commissioner's term of office, which may be ended before it is necessary. There is no chance of transferring the knowledge and expertise of the Disability Rights Commission if this term of office is brought to an end too quickly. It needs time, it needs effort and it needs consideration. I hope my noble friend will be able to say, "Okay, on this occasion, too, we will meet what has been suggested, especially in view of the heavy workload of the DRC". You cannot transmit that overnight, so please extend the life of the Transitional Commissioner, if you can. I beg to move.

Lord Tordoff: My Lords, before we go any further, I should say that we are debating Amendment No. 26, which states:
	"Page 65, line 35, at end insert"—
	the words as printed on the Marshalled List—although of course Amendments Nos. 29 and 107 are grouped with it.

Lord Williamson of Horton: My Lords, I am glad to hear that because that was the amendment I was going to speak to. I should like to support the amendment moved by the noble Lord, Lord Carter. I realise that it is a probing amendment, but, given my long association with the mental health charity Rethink, of which I am a patron, I emphasise how important it is to these charities and the people who benefit from them or participate in them to have such assurances as the Government give. What the Minister says will be in Hansard tomorrow, but a fortnight or three weeks later it will be in the documents that are distributed by those organisations and it is always very much appreciated. I am sure that the result will be quite satisfactory, but I emphasise that such assurances are very much appreciated outside this House.

Lord Addington: My Lords, I emphasise what the noble Lord, Lord Carter, said: mental health is not only one of the most hidden of debilitating conditions but also one of the most demonised. The lack of knowledge and the folklore that has been built up over the generations is massive; virtually no other group has to deal with this. A few other groups may be seen as odd, but none is seen as threatening. A clarification amendment would probably be better than a probing amendment here. Clarification that the Government are prepared to take on the groundbreaking work that the DRC has been doing would be helpful. We have a long way to go in public education if nothing else in this area, and I hope that the Government will make some positive comments. The other two amendments in the group are self-explanatory. I hope that the Government will be able to embrace at least the thought that lies behind them.

Lord Wedderburn of Charlton: My Lords, I wish merely to say how much I agree with my noble friend Lord Ashley on this very important matter. There is only one thing worse than the provision for mental health in the National Health Service and that is the crumbling service supplied to help those with sexually transmitted diseases. When one says that, one sees how bad the provision is for mental health. This is a special problem and I hope that my noble friend will treat Amendment No. 26 with some warmth.

Baroness Darcy de Knayth: My Lords, I should like to give an extra shove to the expert probe of the noble Lord, Lord Carter, for Amendment No. 26 with regard to making encouraging noises about setting up a mental health action group again. The noble Lord said that he had a feeling of déjà vu and I did too. I remember the chair of the National Disability Council, which preceded the DRC, saying that when people were interviewed for a job, they preferred the gap in their CV to be interpreted as a possible spell in prison rather than in a mental health hospital. We still have a very long way to go; we do not seem to have progressed very much since then. A positive, encouraging statement from the Minister would be extremely valuable.
	I hope that the Minister will be able to accept Amendment No. 29 on consultation, so expertly moved by the noble Lord, Lord Ashley, or at least come back with something of her own. I would love her to accept Amendment No. 107 on the transition commissioner but if she does not feel that she can at present, I would urge her to think very carefully about it before Third Reading. I am delighted that the EOC and the DRC supported putting the transition commissioner on the same basis as their commissioners. The DRC says that at least one formal investigation and a number of legal cases would probably just be coming to a crucial point when, as the Bill stands, their transition commissioner would fizzle out. I hope that the Minister will consider that very carefully.

Baroness Wilkins: I add my strong support to the three amendments, particularly Amendment No. 26. People with mental health problems are far too easily forgotten when discussing disability issues and, as we have heard, they face very high rates of exclusion. As well as supporting Amendment No. 29, I support Amendment No. 107 in particular. It is important that the wealth of knowledge and expertise which the Disability Rights Commission has built up and on which people in all parts of the House depend and draw extensively is transferred effectively and not lost. I hope that the Minister will accept the amendment.

Baroness Ashton of Upholland: My Lords, I am very grateful to everyone who has spoken in this important debate. I begin with Amendment No. 26, about which noble Lords have made clear their views. I completely endorse what has been said about the particular issues that affect those with mental health problems. Indeed, the Social Exclusion Unit report in 2004 concluded that stigma and discrimination against people with mental health problems is pervasive throughout society, backing up everything that noble Lords have said. Despite a number of campaigns, there has been no significant change in attitudes.
	I agree completely with my noble friend Lord Carter that there is a lot to be done. The Disability Rights Commission's mental health action group has made good progress in drawing from the range of networks and expertise available to it. I would expect the commission to learn and draw from the Disability Rights Commission's experience in this area and to continue with a level of engagement through its disability committee, which can continue to make a difference. I am not suggesting that I will include an express requirement in the Bill—noble Lords will know my aversion to lists in all possible ways. However, I think that what my noble friend Lord Wedderburn and the noble Lords, Lord Williamson and Lord Addington, as well as the noble Baroness, Lady Darcy de Knayth, were after clarification about what we expect the commission to be doing. I hope that my answer will satisfy them.
	On Amendment No. 107, which I will take out of order for a bit of fun, the noble Baroness, Lady Darcy de Knayth, asked in Committee whether the term of appointment of all transition commissioners could be on a common basis. I understand that and I have talked with Mr Bert Massie at length on the issue. We do see some merit in the argument. In a classic way, my note says that this is an issue on which we would like to reflect further. That is code for "we want to do it but we just need to get clearance". On the basis that we can go ahead, there is nothing between us. We just need to make sure that we get agreement throughout the Government. I hope that that will make noble Lords feel very happy.
	On Amendment No. 29, my noble friend Lord Ashley of Stoke said in Committee that he wanted to see a provision included in the Bill requiring disabled people to be among those consulted. He recognised that they probably would be consulted and I sought to confirm that in my response. However, I understand why noble Lords have returned to the matter today. With that in mind, and to remove any vestige of doubt I accept that amendment and thank my noble friend for tabling it.

Lord Carter: My Lords, before I respond to the Minister, I apologise to the noble Lord, Lord Tordoff, on the Woolsack. As a Deputy Speaker, I should have known that I should have said "I beg to move" and then given him time to put the question.
	I am extremely grateful to my noble friend the Minister once again for all the assurances that we have received on Amendment No. 26. I am sure that they are acceptable. She says that she wishes to reflect further on Amendment No. 107. If she has not reflected sufficiently by Third Reading, we shall table on amendment to settle her resolve. Of course, we are delighted for my noble friend Lord Ashley that she has accepted Amendment No. 29. I beg leave to withdraw Amendment No. 26.

Amendment, by leave, withdrawn.

Lord Tordoff: My Lords, I remind the House that if Amendment No. 27 is agreed to I cannot call Amendment No. 28 because of pre-emption.

Lord Falconer of Thoroton: moved Amendment No. 27:
	Page 66, line 6, leave out paragraphs (a) and (b) and insert "sections 8 and 11 in so far as they relate to disability".
	On Question, amendment agreed to.
	[Amendment No. 28 not moved.]

Lord Ashley of Stoke: moved Amendment No. 29:
	Page 66, line 16, after "consult" insert "disabled persons and other"
	On Question, amendment agreed to.
	[Amendment No. 30 not moved.]

Lord Ouseley: moved Amendment No. 31:
	Page 66, line 40, at end insert—
	"PART 5A
	EQUALITIES COMMITTEES
	:TITLE3:Establishment
	64A (1) The Commission shall establish decision-making Equalities Committees to be known as—
	(a) the Disability Committee,
	(b) the Sexual Orientation Committee,
	(c) the Religion or Belief Committee,
	(d) the Age Committee,
	(e) the Race Committee, and
	(f) the Gender Committee.
	(2) The Commission shall ensure that the Equalities Committees are established before section 8 comes into force (to any extent).
	:TITLE3:Membership
	64B The Commission shall ensure that—
	(a) there are not less than 7 or more than 9 members of each of the Equalities Committees,
	(b) no fewer than one half of the members of each of the Equalities Committees have personal or direct experience of the cause of discrimination or prejudice referred to in section 11 with which their Equality Committee is concerned,
	(c) the chairperson, (or joint chairpersons, where that is the case), of each of the Equalities Committees has personal or direct experience of the cause of discrimination or prejudice referred to in section 11 with which his or her Equality Committee is concerned,
	(d) no fewer than one half of the members of the Disability Committee are persons who are (or have been) disabled persons,
	(e) no fewer than one half of the members of the Race Committee are persons from a black or other ethnic minority background, and
	(f) no fewer than one half of the members of the Gender Committee are women.
	64C The appointment of each member of the Equalities Committees shall be for a period of not less than 2 years or more than 5 years, subject to the possibilities of—
	(a) reappointment, and
	(b) dismissal in accordance with the terms of appointment.
	:TITLE3:Functions
	64D (1) The Commission shall by virtue of this paragraph be treated as having delegated to the Equalities Committees—
	(a) the Commission's duty under section 8 in so far as it may be fulfilled by the exercise of the powers conferred by or referred to in—
	(i) section 12,
	(ii) section 14(1)(a), (c) or (d) (or paragraph (e) or (f) in so far as it relates to paragraph (a), (c) or (d)),
	(iii) section 15,
	(iv) section 16,
	(v) section 21,
	(vi) section 29,
	(vii) section 30, or
	(viii) section 32,
	(b) the Commission's duty under section 11 in so far as it may be fulfilled by the exercise of those powers.
	(2) Delegation under this paragraph shall not prevent the exercise by the Commission of a power, or the fulfilment by the Commission of a duty, by action which relates to any one or more than one of the causes of discrimination or prejudice referred to in section 11.
	(3) Before exercising a power to which paragraph 21(2) or 22(3) applies an Equality Committee shall consult the Scotland Committee.
	(4) Before exercising a power to which paragraph 29(2) or 30(3) applies an Equality Committee shall consult the Wales Committee.
	64E Before exercising a power or fulfilling a duty in relation to disability, sexual orientation, religion or belief, age, race, or gender, the Commission shall consult the relevant Equality Committee.
	64F Each Equality Committee shall advise the Commission about the exercise of the Commission's functions in so far as they relate to the subject or remit of that Committee.
	:TITLE3:Resources
	64G In allocating its resources the Commission shall ensure that each of the Equalities Committees receives a share sufficient to enable it to exercise its functions.
	:TITLE3:Report
	64H (1) Each of the Equalities Committees shall for each financial year of the Commission submit to the Commission a report on the Committee's activities in that year.
	(2) The Commission shall incorporate each report of each of the Equalities Committees under sub-paragraph (1) into the relevant annual report of the Commission.
	:TITLE3:5-year review
	64I The Commission shall arrange for a review of the activities of the Equalities Committees to be conducted as soon as is reasonably practicable after the end of the period of five years beginning with the date of the commencement for all purposes of sections 8 and 11.
	64J The following may not participate in the review (although those conducting the review may seek views from any of the following)—
	(a) a Commissioner or former Commissioner,
	(b) staff or former staff of the Commission,
	(c) a person who is or has been an Investigating Commissioner, and
	(d) a person who is or has been a member of a committee established by the Commission.
	64K The Commission shall ensure—
	(a) that those conducting the review consult persons whom they think likely to have an interest,
	(b) that those conducting the review submit a report to the Commission, and
	(c) that the report is published.
	64L The Equalities Committees may not be dissolved under paragraph 14(c)."

Lord Ouseley: My Lords, I realise that having discussed the amendment for a Greater London committee, which was withdrawn, some of the arguments may be repeated here. I shall not waste too much of the House's time, but I wish to be clear that these proposals are very serious. They are made in the context of wanting to align the proposal for committees for equality, for sexual orientation, religion or belief, age, race and gender alongside the proposals for the Disability Committee. In doing so, we recognise and acknowledge the important role that the Disability Committee will play. The value of having other, similar committees would be the same as that for the Disability Committee; they would bring harmony to the work of the commission, rather than being disruptive, as has been said in previous discussions. Rather than creating a delay by leaving the proposal to the commission, there is no reason why it should not be in the Bill and become a requirement on the commission. I hope that it could be reconsidered as something that is acceptable. I beg to move.

Lord Lester of Herne Hill: My Lords, I shall not repeat my general points about inserting inappropriately prescriptive provisions into the Bill, but I should like the noble Lord to reflect on the following. This is not an Equality Commission alone; it is a Commission for Equality and Human Rights. If the noble Lord was right in his general approach, it would also follow that there should be in the human rights area of the commission a series of committees dealing with torture, inhuman and degrading treatment, forced labour, trade union rights within the human rights framework, free speech, privacy and so on. I suggest that we cannot look at this commission as being only about equality—it is about equality and human rights—and its membership and committee structure must meet the needs of the holistic view of the overall commission. That presents a further difficulty with breaking into "commitology", as it is known in Europe.

Baroness Ashton of Upholland: My Lords, I see that the noble Lord, Lord Ouseley, has learned the art of degrouping on the Floor of the Chamber, which is very impressive. I agree with what the noble Lord, Lord Lester, said. While I understand entirely the sentiment behind what the noble Lord, Lord Ouseley, seeks to do, the amendment leads us straight into the silos that I have sought to avoid at every conceivable stage of the Bill. It is really important that the new commission can operate by developing cross-strand working; that is at the heart of what we want the commission to be. We do not want to set up in legislation an elaborate and complex committee structure, for all the reasons that noble Lords have raised today and at other stages of the passage of the Bill. It is very important that the commission uses its resources and sets up the appropriate committees permanently, semi-permanently, temporarily or for particular reasons as it seems fit. It is very important that it does so in the context of wanting to work with cross strands. For those reasons, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Ouseley: My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 3 [Fundamental duty]:

Lord Falconer of Thoroton: moved Amendment No. 32:
	Page 2, line 2, leave out "the creation" and insert "encouraging and supporting the development"

Lord Falconer of Thoroton: My Lords, this group of amendments responds to concerns that Clause 3 gives the commissioner licence to practise social engineering. I thank particularly the noble Earl, Lord Ferrers, the noble Lord, Lord Patten—who is not in his place—as well as the noble Baroness, Lady Miller of Hendon, for expressing with sizzling passion their disquiet at the drafting of this clause, specifically the use of the term "creation of a society" and the depiction of the clause as a fundamental duty, which together appeared to them to overstate the role and function of the commission.
	The amendments replace the term "creation of a society" in Clauses 3 and 13 with the term, "encouraging and supporting the development of a society". That is, I hope, closer to the amendment tabled by the noble Earl, Lord Ferrers, in Committee, and better reflects the spirit and purpose of the clause. The clause does not give the commission licence to engage in social engineering or require it to march us all out into some homogeneous mass; rather it describes the long-term outcomes that the commissioners work towards in carrying out its duties.
	We are pleased too that the descriptive header for this clause will also be revised. Noble Lords who have read Hansard will recall that the noble Earl, Lord Ferrers, was surprised and alarmed that parliamentary procedure does not permit amendments to the cross-headers of a Bill. Indeed, it is a matter for parliamentary counsel alone.
	The powerful arguments put by the noble Earl and other noble Lords in Committee have obviously been persuasive—the draftsman has duly responded—and the descriptive "fundamental duty" cross-header will be replaced with "general duty".
	I believe that these amendments address the principal concerns raised during Committee debate about this clause. I commend this package to the House. I beg to move.

Earl Ferrers: My Lords, I thank the noble and learned Lord very much for having listened to those arguments and for having been kind enough to consider them and agree to alter the Bill. I had not realised that the descriptive header could not be changed. I was surprised that it could not be changed as I thought that anything which appeared in front of Parliament in a Bill could be changed. I am grateful to the noble and learned Lord for having said that it could not be changed but nevertheless for having found that it could be. The new words that have been suggested go all the way to meeting the points about which most of us were concerned.
	I return to a point about which I was concerned in Committee. I am worried about the huge powers that officials have at present as regards allocating funds, and which are likely to increase. I referred to Barnabas House, a hostel for 18 homeless people run by a Baptist church in King's Lynn. It receives a grant of £150,000. The noble Baroness, Lady Ashton, was kind enough to write to me about it. But the fact is that staff at Barnabas House have been told that they must not have Bibles in the rooms, say grace before meals or do anything which is too religious because it might upset those who are non-Christian, even though the organisation is a Christian one. The organisation is now told that staff must not even say prayers at the beginning of their daily meeting. I find it astonishing that officials should interfere in such a way. The officials belong to the Supporting People programme. The interference constitutes the threat that, "If you do not do what we say, the funds will be removed".
	The noble Baroness, Lady Ashton, said in her letter:
	"An action plan has been agreed between Norfolk County Council and Barnabas House and the local Supporting People team along with the West Norfolk Council for Voluntary Services (WNCVS), the Voluntary Hostels Group (VHG) and King's Lynn Churches".
	That is six organisations involved in a poor little hostel which is trying to help homeless people. All these guys will crawl all over it and tell the staff what to do. I believe that is, frankly, a misuse of bureaucracy. It should not be necessary for that to happen. The noble Baroness, Lady Ashton, referred in her letter to what the noble Baroness, Lady Scotland, said; namely, that prayer should not be a prerequisite of receiving a public service, nor should people be preached to while receiving a public service. There should be no compulsion. I understand that but perhaps I should declare an interest in that I am High Steward of Norwich Cathedral. The cathedral has a lot of repair work carried out for which it often receives money from English Heritage. It would be absurd to say that because the cathedral had received public money it should not conduct services for fear that it might upset a passing visitor from the Far East who may not be a Christian. These matters are absurdities which should not be allowed to continue.
	In my view the Supporting People programme is not supporting people. I refer to Thornage Hall, a Camphill Village Trust home. I declare an interest in that I am a patron of it and I also have a daughter who was there. That home looks after people with all kinds of handicap. However, instead of supporting people, the Supporting People programme is virtually undermining them.
	The officials say that people should not sit down to meals together at set times but should be free to eat and come and go when they want to. Families eat together at the same time; even your Lordships eat together. What is wrong with that? How can officials say, "you should not do that; it is against our philosophy"? They even talk about decommissioning the organisation as if it were some sort of obsolete aircraft carrier. I am not sure what decommissioning means, but it is obviously not very nice.
	Over all that hangs the threat of losing grants and people suffering. I say to the noble and learned Lord the Lord Chancellor in the nicest possible way—why do the Government not support those organisations? Why do local authorities not support them? My guess is that it is because the Government, maybe government officials, send a message down saying, "this is the kind of society that we want and you—local authorities—must use your money in the way in which we—the Government—want".
	I hope that the noble and learned Lord and the noble Baroness, Lady Ashton, will look into those points, because they are serious. At present, officials wield colossal power over individuals and organisations. It is not the job of officials to tell religious organisations how to run their organisations or to tell professional people, who for years have looked after handicapped people, that what they are doing is wrong and is not the way that the Government want them to do it. My fear is that the new commission, having much more money and much more power, may inadvertently be giving much more power to officials to say in what way organisations should run their affairs instead of backing those organisations.
	I do not expect the noble and learned Lord the Lord Chancellor or the noble Baroness, Lady Ashton, to answer those points today. I would be grateful if one of them—perhaps the noble and learned Lord the Lord Chancellor if he had time on his hands—could look into the important principle that these organisations should help people. The officials are being given tremendous power, and my fear is that they may try to run those organisations as opposed to helping them to help themselves.

Baroness Miller of Hendon: My Lords, I am sure that the noble and learned Lord the Lord Chancellor will take on board what my noble friend has said. Before I make my few remarks, I apologise not only to the noble and learned Lord the Lord Chancellor and the Minister but to the House for walking out. I had done my calculations wrong, and I thought that there was another five minutes to go.
	Clause 3 as it was and Clause 13 had a fundamental duty to create a society, which was something that I felt so strongly about that I could not wait to get back to thank the noble and learned Lord the Lord Chancellor and the noble Baroness for agreeing and meeting our objections. We really are very grateful, because we regarded them as constitutional matters. The way in which that has been handled and the discussion on a constitutional matter does show the value of this House.

Baroness O'Cathain: My Lords—

Lord Wedderburn of Charlton: My Lords, someone must congratulate the Government on their semantic imagination. To replace "the creation" with "encouraging and supporting the development" is a most remarkable victory of imagination by my noble and learned friend. I hope that his ability in this respect spreads itself across the face of legislation to get a consensus in the remarkable way that he has achieved.

Baroness O'Cathain: My Lords, I rise with some trepidation because I am not going to join the great chorus of "hurrahs". I am grateful to the Government for thinking again about this, but the amendments do not go far enough. The concern about the wording of Clause 3 relates to two issues: first, whether it would make it difficult to succeed in any judicial review of the commission's actions and, secondly, whether it was, in terms of normal statutory drafting, an excessively broad duty for a quango.
	In Committee, the issue of judicial review was raised by my noble friend Lady Miller, who had obtained advice from a number of lawyers who suggested that it could be prayed in aid by the commission to provide a legal basis for almost any action it chose to take.
	That would make it virtually impossible to succeed in challenging the commission by judicial review.
	The issue of drafting was raised by several noble Lords, including the noble Lord, Lord Holme, in a letter dated 21 June to the noble and learned Lord the Lord Chancellor on behalf of the Constitution Committee, as regards which I declare an interest as a member. He referred to the whole of Clause 3 as containing,
	"language of a generality and depth that is seldom found in Acts of Parliament . . . their interpretation will require the making of far-reaching and sensitive decisions that will turn on the Commission's political, social and cultural perceptions".
	Sadly, I do not think that the small change proposed by the Government today goes far enough. The fact remains that the commission is being given a huge overarching mandate in relation to the whole of society. The new wording leaves in place the same possibility that actions for judicial review will fail because nothing, but nothing, would fall outside the scope of the commission's "fundamental duty". It remains an exceedingly general power whose application could have far-reaching implications for our society. I really hope that the Minister will take it away and think again.

Lord Lester of Herne Hill: My Lords, may I deal with the point raised again by the noble Baroness, Lady O'Cathain? I suppose that I make my living out of judicial review proceedings, normally but not always on the side of the applicant; sometimes I am on the side of the public authority. I would like to give some reassurance. I have no doubt at all that the commission will be entirely subject to judicial review on all the main principles.
	As I understand those principles, the first is that the commission has to act within the four corners of the statute giving it power—it cannot frustrate the statutory object. For example, were the commission not to seek to promote equality but the opposite—to frustrate the operation of the Bill—that would be the first ground. That is the principle of legality. Then, if the commission were to act unfairly in any of its procedures—for example, if it were not to apply the principles of natural justice and fairness that have been part of our common law for centuries—that would be the second ground. If it were to act unreasonably or irrationally—to take leave of its senses in a legal sense—or, these days, if it were to act without a sense of proportion and use a steamroller to crack a nut, all those would be grounds for judicial review.
	I do not think that the purpose clause here is any barrier. It simply sets out the broad aims of the commission, but all those principles would apply. I realise that I am speaking as an advocate rather than as a noble and learned Lord, and doing so in the presence of the Lord Chancellor, who will now explain why I am completely wrong.

Lord Falconer of Thoroton: My Lords, diffidently but I hope authoritatively, I shall say that I completely agree with the noble Lord, Lord Lester. I shall put the same point in a slightly different way. The commission is plainly susceptible to judicial review. The three basic principles on which it could be judicially reviewed are: first, if it exercised a power that it did not have under the Bill, because it can do only what the Bill allows it to do; secondly, if it does not act Wednesbury-reasonably, which means that it has to act either reasonably or rationally within the meaning of the well known line of decided cases; and thirdly, if it does not act fairly. The existence of what is now called a general duty rather than a fundamental duty does not detract at all from those principles. I very much hope that that will reassure the noble Baroness, Lady O'Cathain, in relation to her concerns. Like everybody else in the House, I would be extremely keen to make it clear that this body is susceptible to judicial oversight, and that Clause 3 is not intended in any way to dilute or reduce such oversight.
	I thank noble Lords who supported the amendments. I cannot deal in detail with the points made by the noble Earl, Lord Ferrers, save to say that I join him in astonishment that six bodies could discuss whether grace should be said before meals at a homelessness establishment, and that eating together is not to be encouraged. I join him in saying that, although it is right that government bodies give grants, it is equally right that those institutions run themselves; that is presumably why they are there. I do not think that the noble Earl is suggesting anything to the contrary, but I should make it clear that the types of interventions that he describes would not be either the function or the purpose of the body such as the commission that we are setting up. I shall look into the particular examples he gave. I give no guarantee of providing any satisfaction, but they certainly seem to be issues that should be looked into. I commend the amendments to the House.

On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendment No. 33:
	Page 2, line 9, leave out "communities" and insert "groups"
	On Question, amendment agreed to.
	Clause 4 [Strategic plan]:

Lord Falconer of Thoroton: moved Amendment No. 34:
	Page 2, line 26, at end insert—
	"(3A) The Commission shall send the plan and each revision to the Secretary of State, who shall lay a copy before Parliament."
	On Question, amendment agreed to.
	Clause 6 [Disclosure]:

Lord Falconer of Thoroton: moved Amendment No. 35:
	Page 3, line 26, at beginning insert "But"

Lord Falconer of Thoroton: This group of six linked amendments is intended to slightly refine the provisions on national security matters that we introduced in Committee. They relate to Clause 6, which limits disclosure by the commission of certain types of information. It prevents the disclosure of information provided to the commission by an intelligence agency unless that agency has authorised the disclosure.
	Amendments Nos. 35, 36 and 37 clarify that information subject to enhanced protection by reason of its national security sensitivity will now include information "relating to" an intelligence service as well as information "provided by" an intelligence service. The purpose of this clarification is to ensure that the statutory provision in subsection (4) that prohibits the commission from disclosing any information provided by an intelligence agency without its consent now extends not only to material provided by an intelligence service—that is, the Security Service, the Secret Intelligence Service or Government Communications Headquarters—but material relating to an intelligence agency which may have been provided to the commission by a third party. Since the aim of this provision is to prohibit the disclosure, even in a commission report of an inquiry or investigation, of information that would prejudice national security, it seems sensible to include information relating to, as well as provided by, an intelligence service. Subsection (4) of Clause 6 will therefore now provide that the commission may not disclose information relating to, as well as that provided by, an intelligence service, unless the relevant intelligence service itself authorises the disclosure.
	Schedule 2 provides powers for the commission to issue a notice requiring the provision of information during an inquiry, investigation or assessment of a public sector body and if necessary seek an injunction to enforce the notice through applying to the county or sheriff courts. In the case of an intelligence service a different procedure applies. An intelligence service may give notice to the commission that it intends to disregard the notice on specified grounds of national security. The commission may, however, apply to the Investigatory Powers Tribunal to have the notice enforced. Amendments Nos. 90 and 91 to Schedule 2 provide necessary instruction on the procedure that the tribunal should follow. They provide that the Investigatory Powers Tribunal must apply the principles of judicial review in considering an application by the commission for an order to enforce a notice it has issued to an intelligence service to disclose information. In the absence of such a provision, it is likely that the tribunal would apply judicial review principles, but it would not be obligatory. Since the policy intention is that such principles are applied, for the avoidance of doubt it seems sensible to make express provision for that on the face of the Bill. That is what we have done.
	Amendment No. 92 extends the class of material that the commission will be required to protect, in a way that the Secretary of State may specify, to include information or documents relating to an intelligence service as well as information and documents provided directly to the commission by the intelligence service. This is a similar provision to the amendment that I have just mentioned. Previously, the Bill applied a statutory bar to disclosure without consent only to material provided by the intelligence services. Likewise, the commission would be under an obligation only to protect documents provided by the services. This amendment and Amendment No. 36 extend the provision to cover materials relating to the intelligence service. I beg to move.

Lord Lester of Herne Hill: My Lords, I have no objection to the amendments but, as I understood what the noble and learned Lord the Lord Chancellor was saying, there could be circumstances in legal proceedings where the court would be able to decide whether the disclosure was necessary in the public interest. As I understand it, that would be the position, but I entirely agree with the scope of the amendments as they stand.
	I have one further point. I may be being completely stupid—I probably am—but Clause 6(3)(g), which does not relate specifically to the point that we are discussing, states that the subsection authorises a disclosure made,
	"if the information was acquired by the Commission more than 70 years before the date of the disclosure".
	On the face of it, that seems a very odd idea, and I wonder whether there is a printing error.

Lord Falconer of Thoroton: I agree with the noble Lord's second point. I shall need to think about this, but I believe that it is envisaged that if the information were given to the commission today, then in 2075, even without the consent of the intelligence services, it would be possible for the commission to disclose the information. I believe that that is the effect of the wording, but perhaps I may check the position and ensure that that is the case.
	The noble Lord's first point related to whether the court had a specific power in this matter. I do not think that such a power is set out in the Bill. The only power given to anyone is in relation to the Investigatory Powers Tribunal.

On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendments Nos. 36 and 37:
	Page 3, line 26, after "by" insert "or relating to"
	Page 3, line 26, leave out "the" and insert ", nor may the Commission make, a"
	On Question, amendments agreed to.
	Clause 7 [Scotland: human rights]:

Lord Falconer of Thoroton: moved Amendment No. 38:
	Page 4, line 4, leave out ", 10"
	On Question, amendment agreed to.
	Clause 8 [Equality and diversity]:

Lord De Mauley: moved Amendment No. 39:
	Page 4, line 21, after "rights" insert "and responsibilities"

Lord De Mauley: My Lords, this amendment would place an obligation on the commission to promote awareness and understanding of the fact that people have responsibilities as well as rights. In Committee, I mentioned a 1997 report by a group of senior politicians from all over the world, including the late Lord Callaghan, on a proposed universal declaration of human responsibilities. I also mentioned four examples of situations where people show a tendency to ignore or forget their responsibilities in claiming their human rights.
	The noble Baroness the Minister kindly wrote to me recently giving her objections to our proposed amendment on this subject at Committee stage. She explained in particular that it was the linking of rights to responsibilities to which the Government objected. She pointed out that some of the rights protected by the Human Rights Act are absolute rights, such as the right to life and the right not to be subjected to torture. That, of course, we accept. The Minister also helpfully explained that, in her view, the concept of balancing one's own rights against the rights of others is a different concept from that of responsibilities and is already within the scope of the commission's duty under Clause 9.
	Perhaps the noble Baroness can explain to your Lordships how that is reconciled with the words of the Prime Minister on the "Today" programme on 16 September on the subject of responsibility, when he said:
	"With rights come responsibilities, and if people want the right, whether it is the right to stay here or the right to freedom of speech, there are always limits on that: just as there are limits to inciting racial hatred, there are limits to inciting people to commit offences against other people . . . a right to what people accept as human liberties . . . has always been qualified by some sense of duty or responsibility".
	If that is not enough to convince the Minister perhaps I can quote from the Chancellor of the Exchequer—perhaps the next leader of her party—at the recent Labour Party conference, when he said,
	"I learned from my mother and father that for every opportunity there was an obligation, for every demand a duty, for every chance given, a contribution to be made. And when they said to me that for every right there was a responsibility, for them that was not just words. What they meant was quite simple and straightforward, for me, my moral compass".
	He went on to say,
	"In community relations, the respect for diversity and the rights of individuals is matched by the responsibility to integrate as a community and each play our part as citizens. In a family policy, in parenting contracts and orders, support for parents matched by responsibilities they accept",
	and much more besides in the same vein.
	It is not so much the fact of the existence of rights and responsibilities with which we are concerned, but it is the public's understanding thereof. As I suggested in Committee, we need an authoritative body to be responsible for spreading understanding that human rights involve the taking of responsibility. I suggest that it would be far better that people should be educated than that they should waste the court's time. What better body to undertake that education could there be than the Commission for Equality and Human Rights?
	We would be happy to accept altered wording to give effect to our amendment if the Minister can help us, but in view of the apparent wholehearted agreement of the two most senior members of her party, I find it hard to see, in the circumstances, how she can possibly continue to resist the intent of this amendment. I beg to move.

Lord Lester of Herne Hill: My Lords, for every right there is a correlative duty. A legal right does not mean anything unless someone has a duty in respect of that right. If I have a right to non-discrimination in employment, my employer has a duty not to discriminate against me as his worker or employee. This amendment relates to Clause 8(1)(d) which comes under the equality enactments. When it says,
	" promote awareness and understanding of rights",
	it necessarily means that, without the need for any further language at all, the commission will be promoting awareness and understanding both of the rights of workers and the responsibilities of employers, both of the rights of tenants and the responsibilities of landlords, both of the rights of pupils or students, and so on. This is not controversial, politically or otherwise; it is simply unnecessary because it is necessarily there within what the commission has to do.

Baroness Warnock: My Lords, I support what the noble Lord, Lord Lester, has just said. It seems to me that there is an endemic confusion about the connection between rights and responsibilities. It would be very nice if everyone who claimed a right also claimed that they had other responsibilities to society, but the correlation between rights and responsibilities surely goes the way mentioned by the noble Lord, Lord Lester.
	If someone has a right of way over my land I have a duty not to inhibit him from crossing my land. The duty and the responsibility that are correlative to the right goes to the person who must not inhibit the person walking across the land. Of course, I hope that, morally, the person who walks across my land will not destroy my fences, but that is not a correlation. I have a duty to keep open the path and I believe that this amendment would serve to exacerbate what is already to me a very irritating confusion that keeps cropping up, not least in what the Prime Minister himself said.

Lord Falconer of Thoroton: My Lords, I agree with the analysis of the noble Baroness, Lady Warnock, and the noble Lord, Lord Lester; namely, if I have a right not to be discriminated against, my employer or the person providing me with services has a responsibility not to discriminate against me. I also agree completely with the analysis of the subsection by the noble Lord that in relation to those rights, there are responsibilities and people must not infringe people's rights. I perfectly well understand what the noble Lord, Lord De Mauley, is saying.
	With the greatest and most profound respect for the noble Baroness, Lady Warnock, I do not believe that there is much confusion about this. There is the right and responsibility of the kind mentioned by the noble Lord, Lord Lester, but there is also the position that when one is given a right, one has to recognise that one has some responsibilities as well. I thought that the example given by the noble Baroness, Lady Warnock, was absolutely perfect. If I have a right to walk over her land, I have a responsibility to use that right in a sensible and thoughtful way.
	The noble Lord, Lord De Mauley, appears to be aiming at that in his amendment. However, for all the reasons given, it does not get there. The principle he describes is right. I—and I would say this, wouldn't I?—completely support the extracts of the speeches from our Prime Minister and the Chancellor of the Exchequer, which precisely express it and, with the greatest respect, express it without confusion.
	The amendment proposed by the noble Lord, Lord De Mauley, does not hit the target or get anywhere near it. Furthermore, I do not believe that an amendment is the way to deal with the issue because one is inserting responsibilities into a Bill which create rights and the correlative responsibilities, but do not deal at all with what the noble Baroness, Lady Warnock, rightly described as the moral responsibility that goes with them. I believe that we should try to keep moral responsibility outside legislation.

Lord Lester of Herne Hill: My Lords, would I not be right in saying that if a worker brought a claim of discrimination and behaved unreasonably, he would not be able to succeed in that claim in any event? Does it not apply to any assertion of rights that the claimant must demonstrate that he is not abusing his rights? Therefore, the notion of not abusing your rights is also built into the notion of rights and duties

Lord Falconer of Thoroton: My Lords, indeed, and that is reflected in specific provisions. I do not want to enunciate a general principle, but, subject to the terms of the statute, that is right. Therefore, my response to the noble Lord, Lord De Mauley, is that it is an important point with which I agree, as defined by the noble Baroness, Lady Warnock, and the noble Lord, Lord Lester. With respect, I ask him to consider whether it is wrong to try to deal with the matter in legislation, but to recognise that we both agree on the broad approach that should be taken to rights.

Lord De Mauley: My Lords, I thank the noble Lord, Lord Lester, and the noble Baroness, Lady Warnock, for their contributions. I also thank the noble and learned Lord the Lord Chancellor for his comments, for which I am grateful. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Miller of Hendon: moved Amendment No. 40:
	Page 4, line 25, at end insert ", and
	( ) conduct its affairs in the public interest and with an appropriate degree of independence"

Baroness Miller of Hendon: My Lords, this simple and short amendment requires the CEHR to conduct its affairs in the public interest and with an appropriate degree of independence. I introduced an identical amendment in Committee and I withdrew it in order to consider the Minister's reply. That I have carefully done, but despite the assurances that the Minister gave me in, I accept, entirely good faith, I still feel that the concept ought to be spelt out in black and white not only for the benefit of the public but for the guidance of the CEHR and any tribunals which might have to adjudicate on any matter coming from it.
	The amendment was inspired by the identical provision in a Private Member's equality Bill introduced by the noble Lord, Lord Lester, in 2003. After expressing his surprise at being reminded of his authorship of this highly commendable concept, the noble Lord told your Lordships that he certainly agreed with the substance of what I had said. Later in the same brief debate, he exacted an acknowledgement from the Minister that if the commission were not to act in the public interest or abused its powers, the courts could intervene.
	On the abuse of powers, yes, clearly the courts could intervene, would intervene and no doubt should intervene. But deciding what is in the public interest is a subjective political opinion for angels. I suppose that it is probably not an area which judges would want to rush into—and nor should they. Judges are there to interpret the law and not to make or even to define public interest or public policy. The responsibility of taking the public interest into consideration in deciding cases before it belongs to the powerful organisation that the Bill is creating. It is likewise essential that it should act entirely independent of the Government and not be swayed by populist announcements from the soapbox by Ministers of whatever government happen to be in power at that time.
	When the Bill originally reached your Lordships' House, I was concerned with the degree of control being sought by the Secretary of State over the activities of the commission; by the power of the Secretary of State to direct it to do this or that; and by the lack of any requirement to account, via the Secretary of State, over its future plans. I am grateful to the Minister for having gone a long way to meeting those concerns in a number of important areas—not all of them, but a satisfactory number, which again underlines the importance of this Chamber.
	Do the Government think that there would be anything wrong in the commission basing its actions on what it perceives to be the public interest? Do they believe there is anything wrong with this quasi-judicial organisation acting with what I and the noble Lord, Lord Lester, very moderately requested: namely, an appropriate degree of independence? Will the Minister tell us yes or no? If, as I am sure, the answer is no, there is nothing wrong with either statement. The noble and learned Lord the Lord Chancellor would say he did not think there was anything wrong with the statement—at least that is what I think. There is no reason why those principles could not be spelt out in crystal-clear words. This would certainly put the matter beyond doubt in the minds of the commission. I beg to move.

Lord Lester of Herne Hill: My Lords, it is always amusing to have one's words quoted back at one, and I am grateful to the noble Baroness, Lady Miller of Hendon, for recalling them. The second limb of this amendment is met entirely by the Government's amendments, because they have now secured what is called an appropriate degree of independence in their amendments to the Bill.
	So far as the first words are concerned, I now realise that the disadvantage of my own words is that they do the very thing that the noble Baroness rightly deprecates, which is to involve the courts in unnecessary litigation about what is or is not the public interest. That would not be desirable. The public interest is defined in the Bill we are debating as the equality and human rights provisions that have to be interpreted and applied by the commission and the courts according to law, and if the commission were to frustrate the statutory objects or act contrary to law, it would be subject to judicial review. Neither the first nor second limb is necessary now.

Lord Falconer of Thoroton: My Lords, I am grateful to the noble Baroness, Lady Miller, for raising these important issues. The answer is yes, of course the commission should operate responsibly and in the public interest; yes, of course it should act with the appropriate degree of independence. Again, though, echoing what the noble Lord, Lord Lester, has said, the framework we have established—and strengthened with a package of amendments today—will ensure this.
	As a non-departmental public body, the commission will be required to operate within a well-established accountability framework. Guidance issued by the Cabinet Office is clear on this point. While NDPBs operate independently of Government, Ministers remain accountable to Parliament for public money spent by that body. The chief executive of the commission, as is the practice with NDPBs, is the accounting officer, and he or she will be required to prepare a statement of account each year, and provide this to the Comptroller and Auditor-General. In this way the commission will be under the scrutiny of the National Audit Office and the parliamentary Public Accounts Committee. In addition, it will be required to draw up and publish a strategic plan setting out its proposed activities clearly. This will be subject to consultation, and will be informed by the views of stakeholders.
	From the amendments agreed to earlier today on the matters relating to the independence of the commission, we will now require the commission to provide a copy of its plan to the Secretary of State in order to lay before Parliament. We have listened carefully to the committee debates in this place about the new commission's independence, and I believe we have responded positively to these concerns. We have taken measures to strengthen many aspects of the commission, such as its appointments and funding—for example, we have dealt with the direction-making powers of the Secretary of State—so that we improve the commitment to independence.
	I am sure that the noble Lord, Lord Lester of Herne Hill, is suitably flattered—deservedly so—by the plagiarism done by the noble Baroness, Lady Miller of Hendon. As he knows, the amendment draws on the provisions of his Private Member's Bill of 2003. I hope, therefore, that the noble Baroness will be completely satisfied, now that the noble Lord, Lord Lester of Herne Hill, is satisfied with the provisions that have been made.
	I sympathise completely with the intention behind the noble Baroness's amendment. I hope that I have made it clear that it is not in any way to frustrate her purpose but because we have already delivered her purpose that we resist the amendments. I hope that, in the light of what I have said, the noble Baroness will feel reassured and will withdraw her amendment with a spring in her step.

Baroness Miller of Hendon: My Lords, with a spring in my step? I can do more than thank the noble and learned Lord the Lord Chancellor and, if I may, the noble Lord, Lord Lester of Herne Hill, for his helpful comments. With the same spring in my step, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton: moved Amendment No. 41:
	Page 4, line 29, at end insert—
	"(3) In promoting equality of opportunity between disabled persons and others, the Commission may, in particular, promote the favourable treatment of disabled persons.
	(4) In this Part "disabled person" means a person who—
	(a) is a disabled person within the meaning of the Disability Discrimination Act 1995 (c. 50), or
	(b) has been a disabled person within that meaning (whether or not at a time when that Act had effect)."
	On Question, amendment agreed to.
	Clause 9 [Human rights]:

Baroness Howe of Idlicote: moved Amendment No. 42:
	Page 4, line 37, at end insert—
	"( ) In determining what action to take in pursuance of children's human rights, the Commission must have particular regard to the importance of the Convention on the Rights of the Child."

Baroness Howe of Idlicote: My Lords, Clause 9(3) rightly requires the commission to have particular regard to the European Convention on Human Rights, but that treaty was not drafted with children in mind. Even within the confines of civil and political rights, the Convention on the Rights of the Child is much broader. It includes, for example, children's right to have their views given due weight in Article 12; disabled children's right to active participation in the community in Article 23; children's right to appropriate information in Article 17; and, even more crucial, children's right to protection from all forms of violence in Article 19. Incidentally, I note that the name of the noble Baroness, Lady Massey of Darwen, has been inadvertently left off the amendment, and I regret that.
	Those supporting the amendment believe that there is a special case for including by name the Convention on the Rights of the Child. There is no more ratified human rights treaty in the world, as, I am sure, your Lordships will agree. No fewer than 192 states have ratified it and, in so doing, have agreed to implement fully all the rights of all children. The convention gives children a comprehensive set of economic, social, cultural, civil and political rights.
	Human rights bodies, including the European Court of Human Rights and the parliamentary Joint Committee on Human Rights, use the convention as their benchmark for determining children's human rights issues. Domestic courts increasingly refer to the convention when considering matters affecting children. As the noble Baroness, Lady Massey of Darwen, would have said—she sends her apologies for not being able to be with us this afternoon—the convention's clear guidance would be invaluable, particularly at a time of so much change in children's services in this country. I should also add that the Local Government Information Unit also supports that approach. It says:
	"We believe that there is a risk that the human rights of children will not be fully addressed in the activities of the new commission unless specifically referred to in the statutory framework".
	The Committee on the Rights of the Child, the international treaty-monitoring body for the convention, strongly urges that legislation refer explicitly to the convention, even when a broadly based human rights body serves children.
	Your Lordships will remember that last year, during debates on Part 1 of the Children Act 2004, the House made strenuous efforts to create a rights-based Children's Commissioner for England, for England's 11 million children. That was to be in line with the rest of the UK and Europe. Although, I am glad to say, the legislation was improved considerably as it passed through both Houses, sadly it remains "rights-light" and second class in that respect. While commissioners in Wales, Northern Ireland and Scotland must promote and protect children's rights, the general function of England's commissioner is narrowly defined as being,
	"to promote awareness of the views and interests of children".
	Noble Lords will understand, therefore, that children in England especially, but not exclusively, very much need the new commission to promote and protect their human rights.
	Self-evidently, babies and children are uniquely vulnerable to having their human rights violated. As the Joint Committee on Human Rights said in its report of May 2003, making the case for a rights-based children's commissioner:
	"Children are vulnerable to exploitation and oppression in ways that adults are not".
	Can any of the exiting equality bodies confidently claim that they fully serve the needs and interests of children, or that children are included in the organisation's priority setting and decision making? With the commission we have a new opportunity to weave children's issues throughout the fabric of the organisation.
	This amendment is essential. We must ensure, first, that children are central to the commission, not an add-on, and, secondly, that the commission will take a broad approach to children's human rights, having regard to all the articles of the Convention on the Rights of the Child, as well as the general comments and concluding observations of the Committee on the Rights of the Child. It is to the Convention on the Rights of the Child that children's rights advocates look to transform children's lives. I hope that the Minister will agree that we can and should ensure that that is achieved by the explicit inclusion of the convention in the Bill. I beg to move.

Baroness Walmsley: My Lords, I have added my name to this amendment and support warmly the words of the noble Baroness, Lady Howe of Idlicote. For me there are four principal reasons why the Convention on the Rights of the Child must be referred to by name in the legislation establishing the new commission.
	First, the convention is the world's most widely embraced human rights instrument, according to Kofi Annan—he should know. Somalia and the US are the only two eligible countries that have not yet ratified it, as the noble Baroness, Lady Crawley, reminded us at Question Time only today. In 2002, at the second world summit for children, the importance of the convention in transforming children's lives was reasserted by some 180 nations, including the United Kingdom. The convention sets the standard for a good childhood. It is the document for promoting and protecting children's human rights.
	Secondly, the convention is probably the most comprehensive treaty of all, encompassing children's economic, social and cultural rights, as well as their civil and political rights. There is currently no equivalent treaty for any other sector of the population.
	Thirdly, children are uniquely dependent and vulnerable, and easy to ignore. Having the convention written into the legislation will be a constant reminder that the new commission must work for children and their rights. The commission will need to consider fully children's needs in all its planning and priority setting, and children, just like adult stakeholders, will need to be consulted on and involved in the governance of the new institution. Without that one reference to children, I very much fear that they will be left out in the cold.
	In November 2002, the Committee on the Rights of the Child, the international treaty monitoring body for the convention, issued standards for national independent human rights institutions for children. It said:
	"While adults and children alike need independent national human rights institutions to protect their human rights, additional justifications exist for ensuring that children's human rights are given special attention".
	The committee urges the creation of specialist, rights-based commissioners for children or an identifiable commissioner or children's rights division within a broad-based human rights bodies.
	It is in the light of that statement that I turn to my fourth reason. Children in England do not have a rights-based children's commissioner, as the noble Baroness, Lady Howe, has just reminded us. Despite our best efforts in this House, Part 1 of the Children Act 2004 left the other House with five references to children's rights removed. The legislation says that the commissioner must have regard to the convention, as does the legislation for the other three UK commissioners. But the Government have always been very clear. The commissioner is not, and never was meant to be, an independent human rights institution for children. When the appointment of Professor Al Aynsley-Green was announced on 2 March, the press release did not once mention rights or the convention. The Secretary of State, Ruth Kelly, declared,
	"[This] appointment will strengthen the voice of children and young people, giving them their very own representative to take forward the matters close to their hearts".
	There was not a single mention of rights.
	So it is to this new commission that we must look for children's human rights to be promoted and protected. But we cannot leave that to chance or good will; if Parliament wants children to be served by this body, we must ensure that the legislation says so.

Baroness Warnock: My Lords, I strongly support this amendment. Children have needs which are peculiar to children. It is on the needs of children that their rights should be based, as it is on the needs of human beings in general that their rights are based. Children's needs are not different, but they have extra needs that adults do not have. It is extremely easy to say that there is no reason to mention children's rights in this Bill because human rights are at the centre of it. That is not enough. I agree with everything that has been said. Particular reference to the convention is really essential to give this Bill the teeth, which, unfortunately, the commissioner has not been allotted. Children will suffer by being marginalised unless the convention is mentioned here.

Baroness Whitaker: My Lords, I think that this amendment does have merits, for this reason. If we look at Clause 9(4), we see that the commission is directed to take account of "any relevant human rights" in relation to equality and diversity. It is directed to take account of "any relevant human rights" in relation to disability and in relation to communities. Is it not therefore odd that the commission must take account of children's rights in relation to equality and diversity, in relation to disability and in relation to communities, but not in relation to children themselves? It seems to me that there is a gap in the drafting of the Bill. I am sure that my noble friend will be able to employ her wordsmiths to put that right.

Lord Lester of Herne Hill: My Lords, it is my understanding that when Clause 9(2), for example, refers to "other human rights"—that is to say, other human rights than the convention rights—by that is meant "other human rights". And other human rights are all the rights that are contained in all of the international human rights treaties by which the United Kingdom is bound. That includes the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention Against Torture. Therefore, although I entirely sympathise with the aims of those supporting the amendment, I believe that the fears expressed are not real in practice because the commission will have to have regard to all of the rights in the Rights of the Child Convention and in the other human rights conventions as well.

Baroness Ashton of Upholland: My Lords, I am very grateful to noble Lords who have spoken. I have to say that I shall ignore the notes that I have got in front of me because I want to say something slightly different. Noble Lords know how much I loath the idea of starting a list in any way, shape or form. I am very mindful of what the noble Lord, Lord Lester, said about "other human rights", which incorporates the UN Convention on the Rights of the Child and many others to which we have been party; for example, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Torture, the International Covenant on Civil and Political Rights, and so on. There are a number of them and I promise noble Lords that if we include one, there will be an amendment at the next stage and the one after to add others. If we include a list, that also means that when we sign new conventions, as I hope we will, the Bill will not cover them properly. So I am not inclined to go down the route of starting a list.
	However, I know that the noble Baronesses, Lady Howe and Lady Walmsley, and my noble friend Lady Whitaker feel passionately about the issue. I had a sense of déjà vu at some points but, as the noble Baroness, Lady Walmsley, knows, I am known for saying something slightly different from what people think that I am going to say. A genuine issue has been raised here which I want to go away and think about. It concerns ensuring that children get involved with the commission in the right way. I think that that is what is the noble Baroness, Lady Howe, seeks to do. At present, the noble Baronesses remain unconvinced that we will ensure that. I have no idea how to do that and I am not even sure that it is right to do it in legislation. Although I do not accept the amendment, I commit, between now and Third Reading, both to talk to the noble Baronesses and my noble friend and to ask our officials to think about how to ensure that children are not forgotten, without setting up either a silo or a separate strand of work and recognising that some of the issues that the commission will deal with will concern both adults and children and some will not be relevant to children. However, the point has been well made and I hope that, on that basis, the noble Baroness will feel able to withdraw her amendment.

Baroness Howe of Idlicote: My Lords, I thank all noble Lords who have taken part in the debate either supporting my amendment or pointing out why it is unnecessary. In particular, I thank the Minister for what she said about the possibility of thinking of the way in which children will figure more significantly. As she will understand, I am not entirely happy. I would much rather include the convention in the Bill, but I am grateful for the extra thought that she has undertaken to give to the matter between now and Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Ashton of Upholland: moved Amendments Nos. 43 to 44:
	Page 5, line 4, leave out ", 10"
	Page 5, line 7, leave out ", 10"
	On Question, amendments agreed to.
	Clause 10 [Disability]:

Baroness Ashton of Upholland: moved Amendment No. 45:
	Leave out Clause 10.
	On Question, amendment agreed to.

Lord Tordoff: My Lords, I pause before calling Amendment No. 46 because I must advise the House that if it is carried, I shall not be able to call Amendment No. 47 because of pre-emption.

Baroness Ashton of Upholland: moved Amendment No. 46:
	Page 5, leave out lines 26 to 35 and insert—
	"(a) promote understanding of the importance of good relations—
	(i) between members of different groups, and
	(ii) between members of groups and others,
	(b) encourage good practice in relation to relations—
	(i) between members of different groups, and
	(ii) between members of groups and others,
	(c) work towards the elimination of prejudice against, hatred of and hostility towards members of groups, and
	(d) work towards enabling members of groups to participate in society."
	On Question, amendment agreed to.
	[Amendment No. 47 not moved.]

Baroness Ashton of Upholland: moved Amendments Nos. 48 to 50:
	Page 5, line 36, leave out "community" and insert "group"
	Page 5, line 36, leave out from "persons" to "who" in line 37.
	Page 5, line 39, at end insert—
	"(aa) disability,"
	On Question, amendments agreed to.
	[Amendments Nos. 51 and 52 not moved.]

Baroness Ashton of Upholland: moved Amendments Nos. 53 to 58:
	Page 6, line 3, leave out "community" and insert "group"
	Page 6, line 4, leave out "sub-group or sub-class" and insert "smaller group or smaller class"
	Page 6, line 5, leave out "community" and insert "group"
	Page 6, line 6, leave out "community" and insert "group"
	Page 6, line 10, leave out "communities" and insert "groups"
	Page 6, line 11, at end insert—
	"(4A) The Commission may, in taking action in pursuance of subsection (1) in respect of groups defined by reference to disability and others, promote or encourage the favourable treatment of disabled persons."
	On Question, amendments agreed to.
	Clause 12 [Monitoring the law]:

Baroness Ashton of Upholland: moved Amendment No. 59:
	Page 6, line 30, leave out subsection (3).
	On Question, amendment agreed to.
	Clause 13 [Monitoring progress]:

Baroness Ashton of Upholland: moved Amendment No. 60:
	Page 7, line 3, leave out "creating" and insert "encouraging and supporting the development of"
	On Question, amendment agreed to.
	Clause 15 [Codes of practice]:

Baroness Ashton of Upholland: moved Amendment No. 61:
	Page 8, line 32, at end insert "if—
	(a) the matter is not listed in subsection (1), but
	(b) the Secretary of State expects to add it by order under section 16(5)."
	On Question, amendment agreed to.
	Clause 17 [Inquiries]:

Baroness Ashton of Upholland: moved Amendments Nos. 62 to 65:
	Page 9, line 31, leave out from beginning to "conduct" and insert "may"
	Page 9, line 32, leave out "specified"
	Page 9, line 33, leave out ", 10"
	Page 9, line 33, leave out from "11," to end of line 35.
	On Question, amendments agreed to.
	Clause 20 [Disability]:

Baroness Ashton of Upholland: moved Amendment No. 66:
	Leave out Clause 20.
	On Question, amendment agreed to.
	Clause 21 [Communities]:

Baroness Ashton of Upholland: moved Amendments Nos. 67 to 69:
	Page 11, line 7, leave out "communities" and insert "groups"
	Page 11, line 9, leave out "communities" and insert "groups"
	Page 11, line 11, leave out "communities" and insert "groups"
	On Question, amendments agreed to.
	Clause 22 [Investigations]:

Baroness Ashton of Upholland: moved Amendments Nos. 70 to 73:
	Page 11, line 19, leave out subsection (2).
	Page 11, line 22, leave out "(but this subsection is subject to subsection (2))"
	Page 11, line 24, leave out subsection (4).
	Page 11, line 26, leave out "or (4)"
	On Question, amendments agreed to.
	Clause 26 [Applications to court]:

Baroness Ashton of Upholland: moved Amendment No. 74:
	Page 14, line 19, leave out subsection (1).

Baroness Ashton of Upholland: My Lords, noble Lords may recall that in Committee we had a clause stand part debate on this clause at the request of the noble Lords, Lord Lester and Lord Dholakia, and my noble friend Lady Lockwood. That debate helped to illuminate the complexities of the commission's power to tackle persistent discrimination. I am sure noble Lords would agree that the commission needs effective tools to tackle the harm that prolonged and serious discrimination can bring.
	Noble Lords may recall the request from the noble Lord, Lord Lester, to,
	"remove the barnacles from the existing system,
	meaning the requirement that there must have been an unlawful act notice or court or tribunal finding within the previous five years before the commission can apply to a court for an injunction. We agreed to take this away and consider it further.
	I am pleased to inform noble Lords that these amendments achieve the intention of the noble Lord, Lord Lester—that is, they remove the barnacles. Quite simply, we are persuaded that there is a good case for extending the circumstances in which the commission may apply for an injunction to stop a person discriminating. We are proposing, through these amendments, that the commission can apply for an injunction where it considers that a person, unrestrained, is likely to commit an unlawful act. This would parallel the arrangements proposed in Clause 27 in respect of the enforcement powers of the commission to restrain unlawful advertising and instructions or pressure to discriminate.
	The major advantage of these amendments is that they enable the commission to bring proceedings directly and immediately once there is sufficient evidence that, unless restrained, a person is likely to discriminate. While the current legislation requires that a person has already discriminated, Clause 26, as amended, will impose no such restriction. The power can be used against a person whom the commission thinks will discriminate, even though there is not an established track record in that regard.
	But—this is very important and anticipates some of the issues that the noble Baronesses, Lady Miller and Lady O'Cathain, would wish to see expressed—the effect of the amendment is not to make the process of applying for an injunction any less rigorous. This is an evidence-based process, where only evidence of real substance will convince a court that an injunction is necessary to prevent an unlawful act. The commission would be very unwise to launch a case unless it had strong evidence on which to rely. If it were to do so, it would risk costs being awarded against it, as well as damaging its reputation.
	Enabling the commission to apply directly to a court for an injunction without either the evidence of a court or tribunal finding or having conducted an investigation that led to an unlawful act notice in no way reduces the threshold for securing an injunction. These amendments create a streamlined approach, eliminating preliminary stages.
	Having said that, the evidence test required by the courts will be rigorous. In practice, it is not likely to be used lightly and there will have to be strong evidence for the court to grant an injunction. A court would certainly take the record of the person into account in the consideration as to whether to grant an injunction.
	These amendments provide the commission with a rigorous but flexible tool and I commend them to the House. I beg to move.

Lord Lester of Herne Hill: My Lords, I am extremely grateful to the Government for having been open-minded in removing completely unnecessary bureaucratic obstacles. I agree entirely with the way in which the Minister expressed the situation: this does not in any way lower the high threshold needed by the commission to obtain injunctive relief.
	In my personal experience, the power has been rarely exercised in the past—partly because of the obscurity of the drafting, which has been removed. But where it has been used—and it is only used against a persistent discriminator; someone so obstinate and stupid that they continue to defy the law flagrantly—although there have been very few such cases, the threat of going to court is normally sufficient to lead to a prompt settlement and change of heart. So, in that sense, it will actually reduce rather than increase litigation.
	I should add that one cannot please all the people all the time. The Equal Opportunities Commission would have been happy had it continued to have the option of going to an employment tribunal in order to obtain a finding of unlawful employment discrimination. It prefers employment tribunals to county and sheriff courts as appropriate places to deal with discrimination. I understand and sympathise with that view but it seems to me that that should be taken into account by the discrimination law review when it considers which is the best tribunal for dealing with discrimination cases. We wholeheartedly support the amendment.

Baroness Lockwood: My Lords, I, too, thank the Government for what they have done in these amendments. Perhaps I may add to what the noble Lord, Lord Lester, said in relation to courts as compared to tribunals. The reason the Equal Opportunities Commission would prefer tribunals still to be available is that tribunals are now very experienced in dealing with sex discrimination cases whereas the courts are less familiar with the whole legislation. Therefore, pro rata, cases are less likely to succeed in the courts than in the tribunals.
	The EOC has suggested—I would welcome the Minister's comments—that to overcome this problem more training and awareness should be given to people in the courts in order to help familiarise them more with the provisions of the Sex Discrimination Acts.

Baroness Ashton of Upholland: My Lords, in response to that point, as the noble Lord, Lord Lester, said, the EOC's comments will be fed into the discrimination law review, when the whole question of training will be considered because the law review is looking in the round.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 75:
	Page 14, line 23, leave out "to whom this subsection applies"
	On Question, amendment agreed to.
	Clause 30 [Legal assistance]:

Baroness Ashton of Upholland: moved Amendment No. 76:
	Page 17, line 39, leave out from "while" to "but" and insert "they relate to a provision of the equality enactments,"

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 76, I shall speak also to government Amendments Nos. 77 to 81. Although there are several amendments, their effect is minor. This is in response to the 16th report of the Joint Committee on Human Rights.
	Clause 30(5)(b) provides that the commission may only support cases for as long as a provision of the equality enactments remains in issue. However, Clause 30(6) provides a power by which the Lord Chancellor may make an order disapplying subsection (5)(b) in respect of cases which have ceased to relate to the equality enactments but which continue to relate to the Human Rights Act 1998. Such an order would, as I explained in Committee, be made in respect of all cases or a class of case rather than on an individual case-by-case basis.
	In its 16th report in the last Session, the Joint Committee on Human Rights rightly raised a technical point on the drafting. At the moment, the power only covers cases which relied on both the equality enactments and Section 7(1) of the Human Rights Act 1998 from the outset. We accept the recommendation of the Joint Committee that this is unnecessarily restrictive as it would prevent the continued support of cases in which a matter relating to the convention rights within the meaning of the Human Rights Act had arisen in the course of the case. An example would be where a point was raised by the court of its own motion during the course of oral argument.
	The amendment therefore removes this unintended restriction. It will be sufficient that the case has ceased to relate to a provision of the equality enactments but does relate wholly or partly to any of the convention rights, regardless of when exactly the convention point was first raised. It is a matter of detail, as I have indicated. Unless the order-making power is exercised, it will not affect the case support function of the commission and its effect even then would be felt only in very occasional cases. It is, however, a worthwhile change to be made, as the Joint Committee identified.
	We have also taken the opportunity to simplify the drafting of the clause somewhat by standardising the wording used in different subsections. I beg to move.

Lord Lester of Herne Hill: My Lords, as a member of the Joint Committee on Human Rights, I should like to say how gratified we are with the amendments. I need to deal with one point, of which I have given notice. The noble Baroness is not a lawyer but she is better than any lawyer; she knows that I will raise it and that she will not have to answer it this afternoon. However, I need to raise it now because it has been raised by the Equality and Diversity Forum and by Justice, through Gay Moon, its legal officer. It is quite an important point.
	The question is whether we need to amend Clause 30 and expand it to deal with cases where an Act of Parliament has a mismatch with European Community law. The Equality and Diversity Forum and Justice, through Gay Moon, believe that an amendment is necessary. I do not, but I should like to explain what I think is the position and then see whether the Government agree before Third Reading so that we can decide whether to table an amendment.
	The Employment Protection (Consolidation) Act 1978 required that workers could receive employment benefits only if they worked for more than 16 hours a week. It is not an equality Act, it is an employment protection Act. That provision hit disproportionately at women. Therefore, the EOC, which I have the privilege of representing in the House of Lords, was able to bring a judicial review, reviewing the compatibility of the barrier in that Act with the EEC equality directive which says you cannot discriminate indirectly or directly against women. Meanwhile, Mrs Snodgrass, an individual victim, brings her case in the employment tribunal, claiming that she is entitled to the benefit and can knock away the bit of the employment protection legislation which says she must work for more than 16 hours a week.
	The Equality and Diversity Forum is under the impression that because the Employment Protection (Consolidation) Act is not an equality enactment within the meaning of Clause 30(1)(a), the commission cannot help Mrs Snodgrass to bring her individual proceedings in that case. I think that it is mistaken; it is an important point because of the magical effect of the European Communities Act 1972: one has to interpret Clause 30 subject to directly effective Community rights and the legislation must be interpreted in accordance with the European principles and rules. That is why, under the aegis of the noble Baroness, Lady Lockwood, as she will remember, we were able to bring all those wonderful references to the European Court of Justice in individual cases with names such as Macarthys Ltd v. Smith and Worringham v. Lloyds Bank where we were knocking out provisions that were inconsistent with EC law. The EOC had its power to give assistance stretched by the European Communities Act to allow the EOC to back those individual cases.
	Therefore, it seems to me unnecessary to amend Clause 30 because of the effect of the European Communities Act wherever it refers to a provision of the equality enactments—that includes the equality directives, the European directives. When it talks about legal proceedings, it must mean legal proceedings under domestic law, where relevant, read with European Community law.
	I am sorry to tax the patience of the House with all this, but it is important because if that were not the case, there would be regression since it would mean that the new commission could not do exactly what the EOC has been doing ever since the noble Baroness, Lady Lockwood, became its first and distinguished chair. I am sure that that is not the Government's intention. More importantly, I think it is wrong as a matter of law.
	This is a grave and weighty matter to which consideration needs to be given and on which letters need to be written before we decide on Third Reading. I am grateful for the patience of the House.

Baroness Ashton of Upholland: My Lords, let me respond to the interesting—it says here—point of the noble Lord, Lord Lester. I am sure it is interesting, although it is a technical point. As the noble Lord knows, we are aware that the EOC has supported cases that went beyond the Sex Discrimination Act and the Equal Pay Act to include matters that engaged European Community equality law and non-discrimination legislation. As the noble Lord said, the Law Lords interpreted Section 75 of the Sex Discrimination Act as extending to the provision of legal assistance to cases alleging that UK employment legislation was discriminatory against women in contravention of European Community law.
	We will need to confirm with parliamentary counsel that the current drafting of the Bill will also allow the commission to provide legal assistance in cases where an individual seeks to bring a case that a UK non-equality statute is in breach of European equality legislation. We will indeed look at the matter carefully and make sure that we write to the noble Lord before Third Reading.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendments Nos. 77 to 81:
	Page 17, leave out line 41 and insert—
	"(b) if the proceedings cease to relate to a provision of the equality enactments,"
	Page 18, line 4, leave out "relied both on" and insert "related (wholly or partly) to"
	Page 18, leave out lines 5 to 7.
	Page 18, line 8, leave out "rely on" and insert "relate to"
	Page 18, line 8, at end insert—
	", and
	(c) relate (wholly or partly) to any of the Convention rights within the meaning given by section 1 of the Human Rights Act 1998 (c. 42)."
	On Question, amendments agreed to.

Lord Addington: moved Amendment No. 82:
	Page 18, line 23, at end insert—
	"(10) A legislative provision which requires insurance or an indemnity in respect of advice given in connection with a compromise contract or agreement shall not apply to advice provided by the Commission under this section."

Lord Addington: My Lords, this amendment stands in the name of the noble Lord, Lord Carter, the noble Baroness, Lady Darcy de Knayth, and myself. It is one of those complicated matters where we mortals tread very gingerly through the lawyers. But I am advised that effectively the purpose of the amendment is to disapply the requirements in the equality enactments and other legislation which require all advisers, including those from the commission, to have professional indemnity insurance when advising on compromise agreements.
	The amendment would simply remove the requirement that the commission needs indemnity insurance when its staff advise on compromise agreements as part of the legal support provided under Clause 30. The exemption to the amendment would apply, among others, to the relevant provisions on compromise agreements in the Disability Discrimination Act, the Sex Discrimination Act, the Race Relations Act, the Employment Equality (Sexual Orientation) Regulations 2003, the Employment Equality (Religion and Belief) Regulations 2003 and the Employment Rights Act. It also applies to the full range of other employment legislation, existing and forthcoming, since the commission can provide legal support for complainants in respect of the equality enactments and other matters.
	I am grateful for the assistance of the Government in framing this legislation—I can safely say it would not be happening without their assistance. We should all be glad that we have lost many lines of the original amendment from which this is descended. I beg to move.

Baroness Darcy de Knayth: My Lords, I support the noble Lord, Lord Addington, who has made a very good case for the amendment. I believe that the Minister made some quite encouraging noises about it earlier, and I hope that she will be able to accept it or come back with something of her own.

Baroness Ashton of Upholland: My Lords, we undertook to give further consideration to the amendment moved originally by my noble friend Lord Carter. We have considered it further, talked to the stakeholders and believe that it is entirely sensible. I am delighted to accept the amendment.

On Question, amendment agreed to.
	Clause 32 [Judicial review and legal proceedings]:

Lord Falconer of Thoroton: moved Amendment No. 83:
	Page 19, line 10, at end insert—
	"(2A) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose—
	(a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate,
	(b) the Commission may act only if there is or would be one or more victims of the unlawful act,
	(c) section 7(3) and (4) of that Act shall not apply, and
	(d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies);
	and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section."

Lord Falconer of Thoroton: My Lords, in moving Amendment No. 83, I should also like to speak to Amendments Nos. 84, 85, 86 and 102, which are consequential upon it.
	In Committee, my noble friend Lady Ashton undertook to the noble Lord, Lord Lester, that we would consider his amendment to Clause 32 to allow the commission to bring human rights judicial reviews in its name. Having had the advantage of discussing the issue with the noble Lord, Lord Lester, I am pleased to move this amendment which expands the powers of the commission in the way that he sought in Committee.
	The commission already has the power to institute or intervene in legal proceedings relevant to its remit. However, Clause 32(3)(c) expressly provides that the victim test in the Human Rights Act still applies. This test, in Section 7(1) of that Act, provides that proceedings against a public authority for breach of a convention right may be brought only by a person who is—or would be—a victim of the alleged unlawful act. Therefore, the commission at present would not be able to bring human rights judicial reviews.
	This group of amendments provides the commission with an express power to rely on the convention rights in judicial reviews that it has instituted—or in which it intervenes—and disapplies the victim test to that end. However, paragraph (b) of new subsection (2A) requires that the commission may act only if there is or would be one or more victims of the unlawful act—the effect being that there should still be a victim as before, but that the commission may bring the case. This amendment will therefore not create any new opportunities for litigation under the Human Rights Act, or permit purely hypothetical cases to be brought.
	The amendment is not about making the commission a major litigating body in respect of human rights. Its role remains essentially promotional. Paragraph (d) of new subsection (2A) provides a further important restriction; that no award of damages may be made to the commission. As the noble Lord, Lord Lester, said in Committee, granting the commission a limited power such as this allows it to bring strategic cases to clarify important points of law. In many such cases, the facts of the case will be agreed—perhaps as a result of an inquiry—but the legal framework will be in dispute. It is more efficient and more cost effective for the commission to be able to seek a clear declaration on a point of law in such circumstances, instead of requiring a victim to bring a case in their own right and for the commission then to intervene.
	Having listened to those who have been pressing for this power—including the noble Lord, Lord Lester, and indeed the Joint Committee on Human Rights—I hope that the commission will use it wisely and strategically to contribute to the continued development of the body of human rights jurisprudence produced by our domestic courts under the Human Rights Act. The case was made in Committee for this amendment, therefore, I beg to move.

Lord Lester of Herne Hill: My Lords, I should like to pay tribute to the noble and learned Lord the Lord Chancellor. I have already paid tribute to the noble Baroness, Lady Ashton, but the noble Lord the Lord Chancellor needs special tribute paid to him. He was willing to listen to the argument with an open mind. Having listened to it, he came to the conclusion that the Joint Committee on Human Rights was correct. What he has achieved is not a charter for litigation on human rights, all, but the same kind of approach as that used by the commission chaired by the noble Baroness, Lady Lockwood in tackling issues of law where individual victims were there, but did not need to be brought into the proceedings. The example that I am sure the noble Baroness will remember relates to sex discrimination in education. Birmingham, as with the Northern Ireland authorities, was effectively not providing girls with equal opportunities to boys in single-sex schools. There was no need for a 10-year-old girl to bring the case. The EOC was able to seek by way of judicial review a declaration that the law was being breached. As a result, the public authority knew where it was and therefore the need for individual litigation was discouraged.
	The same will now happen on the human rights side, but it will in no sense alter the victim test where there are breaches of convention rights, nor will it involve any claim by the commission for damages or anything of that kind. Therefore, the Lord Chancellor directed himself admirably and we are all very grateful to him.
	On Question, Amendment agreed to.

Lord Falconer of Thoroton: moved Amendments Nos. 84 to 86:
	Page 19, line 12, at end insert ", and"
	Page 19, line 13, after "are" insert ", except as provided by subsection (2A),"
	Page 19, line 15, leave out from "court," to end of line 17.
	Clause 33 [Public sector duties: assessment]:

Lord Falconer of Thoroton: moved Amendment No. 87:
	Page 19, line 27, leave out subsection (2).
	On Question, amendment agreed to.
	Schedule 2 [Inquiries, Investigations and Assessments]:

Lord Falconer of Thoroton: moved Amendment No. 88:
	Page 67, line 34, leave out paragraph 6.
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 89:
	Page 68, line 27, at end insert—
	"(a) may not require a person to provide information that he is prohibited from disclosing by virtue of an enactment,"

Baroness Ashton of Upholland: My Lords, the purpose of Amendments Nos. 89 and 98 is to address the position where there are potentially conflicting statutory provisions: on the one hand, the commission's ability to compel material, on penalty of criminal sanction, while on the other, the party who holds the information does so subject to a prohibition on its disclosure. These amendments will therefore put beyond doubt that the commission will not be able to compel information as part of an inquiry, investigation, assessment, or compliance notice process which the holder is prohibited from disclosing by another piece of legislation.
	We think that this situation is most likely to arise in respect of public sector regulators. They obtain material as part of their own regulatory processes and are subject to statutory restrictions as to its further disclosure. This provision is intended to clarify that the person who receives a notice from the commission to produce material will not be required to comply with that notice to the extent that its disclosure to the commission would breach a statutory bar to disclosure to which it is subject. I beg to move.

On Question, amendment agreed to.

Lord Falconer of Thoroton: moved Amendments Nos. 90 to 95:
	Page 69, line 42, leave out "and"
	Page 69, line 48, at end insert ", and
	"(d) the tribunal shall determine proceedings under this paragraph by considering the opinion of the person who gave the notice under sub-paragraph (1) above in accordance with the principles that would be applied by a court on an application for judicial review of the giving of the notice."
	Page 70, line 1, after "from" insert "or relating to"
	Page 70, leave out lines 11 to 14.
	Page 70, line 16, leave out "prepare" and insert "publish"
	Page 70, line 18, leave out sub-paragraphs (2) and (3).
	On Question, amendments agreed to.
	Clause 34 [Public sector duties: compliance notice]:

Baroness Ashton of Upholland: moved Amendment No. 96:
	Page 20, line 3, after "taken" insert "or proposed"

Baroness Ashton of Upholland: My Lords, in moving Amendment No. 96 I shall also speak to Amendments Nos. 97, 99 and 100. The purpose behind these four amendments is to refine the arrangements for enforcement of the public sector duties so that they are more effective. The general and specific duties create very different sets of obligations and we need a more tailored enforcement arrangement for each.
	In summary, the arrangements that we are proposing are that the commission will be required to conduct an assessment before issuing a compliance notice in respect of a breach of the general duty. There will be no such requirement to conduct an assessment in respect of a breach of a specific duty. Applications to enforce a compliance notice will be to the High Court or Court of Session in respect of a breach of a general duty and to the County Court or Court of Session for a breach of a specific duty. A compliance notice can require information of not only the steps taken to rectify the breach but steps proposed. The commission will also be required to specify in a compliance notice the period of time before which it will not apply to a court to require a person to comply with a compliance notice. The Bill will reflect existing legislation and provide that the sole mechanism for enforcing a specific duty is by means of a compliance notice. It excludes any other party seeking to enforce a breach of a specific duty by any means. I beg to move.

On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendments Nos. 97 to 100:
	Page 20, line 10, at end insert—
	"(3A) The Commission may not give a notice under this section in respect of a duty under section 76A of the Sex Discrimination Act 1975, section 71(1) of the Race Relations Act 1976 or section 49A of the Disability Discrimination Act 1995 unless—
	(a) the Commission has carried out an assessment under section 33 above, and
	(b) the notice relates to the results of the assessment."
	Page 20, line 12, after "information" insert—
	"(a) that he is prohibited from disclosing by virtue of an enactment, or"
	Page 20, line 21, leave out "a county court (in England and Wales) or to the sheriff (in Scotland)" and insert "the court"
	Page 20, line 22, at end insert—
	"(8) In subsection (7) "the court" means—
	(a) where the notice related to a duty under section 76A of the Sex Discrimination Act 1975, section 71(1) of the Race Relations Act 1976 or section 49A of the Disability Discrimination Act 1995, the High Court (in England and Wales) or (in Scotland) the Court of Session, and
	(b) in any other case, a county court (in England and Wales) or the sheriff (in Scotland).
	(9) A notice under this section shall specify a time before which the Commission may not make an application under subsection (7) in respect of the notice.
	(10) Legal proceedings in relation to a duty by virtue of section 76B or 76C of the Sex Discrimination Act 1975, section 71(2) of the Race Relations Act 1976 or section 49D of the Disability Discrimination Act 1995—
	(a) may be brought by the Commission in accordance with subsection (7) above, and
	(b) may not be brought in any other way."
	On Question, amendments agreed to.

Baroness O'Cathain: moved Amendment No. 101:
	After Clause 34, insert the following new clause—
	"LEGAL ASSISTANCE FOR PERSONS OR ORGANISATIONS BEING INVESTIGATED ETC. BY THE COMMISSION
	(1) This section applies where the Commission is—
	(a) conducting an investigation under section 22, or
	(b) issuing an unlawful act notice under section 23, or
	(c) making an application to a court under section 24(6), or
	(d) making an application to a court under section 26, or
	(e) bringing proceedings under section 27, or
	(f) giving legal assistance to an individual under section 30, or
	(g) bringing an application for judicial review under section 32, or
	(h) issuing a compliance notice, or making an application to a court, under section 34.
	(2) In a case to which this section applies, where the defendant in a court or tribunal case or the subject of the notice or investigation is—
	(a) an individual, or
	(b) a charity, or
	(c) an organisation of the type mentioned in section 59 of this Act, the individual, charity or organisation shall be granted legal assistance paid for out of central funds to enable them to respond to the case, the notice or the investigation.
	(3) The Lord Chancellor shall make regulations providing for payment out of central funds for the provision of such legal assistance.
	(4) The sections listed in subsection (1) of this section shall not come into force until the regulations mentioned in subsection (3) have been laid before and approved by resolution of each House of Parliament."

Baroness O'Cathain: My Lords, the problem here relates to the absence of checks and balances against the awesome power of the commission. I believe that the Equality Bill introduced in January 2003 by the noble Lord, Lord Lester, contained more checks and balances on the commission than this one. What restraint is there when this powerful commission pursues, for example, a small charity with limited resources?
	On 11 July at Hansard Column 949, my noble friend Lady Miller drew attention to the fact that the enormous financial and legal resources of the commission could be ranged on one side of a legal dispute leaving a defendant who had limited financial resources at a considerable disadvantage. My noble friend pointed out that that would create enormous inequality. I share those concerns. In particular, I am worried about how that will affect organisations that promote religion. For example, there are organisations such as Alcoholics Anonymous, which as part of its activities—the eight point plan—pray to God for help. If an organisation of that kind wished to recruit a member of staff and did not want to employ an atheist, an atheist could make an allegation that the organisation had breached the Employment Equality (Religion or Belief) Regulations 2003. The commission could decide to back the legal action as a test case to establish the limits of the defences of religion or belief organisations found in the regulations.
	The atheist complainant being backed by the commission will have access to the best legal advice and enormous financial and personnel resources. The defending organisation, however, would almost certainly have to issue an appeal for funds to its band of supporters to pay for legal advice. That would surely be unfair.
	My noble friend Lady Miller moved an amendment in Committee to remedy the situation by giving the commission discretion to provide legal assistance to those on the receiving end of the enforcement proceedings. That did not find favour with the Government, who did not want the commission,
	"trying to face in both directions at the same time".—[Official Report, 11/7/05; col. 953.]
	My amendment is not open to that charge. It does not invite the commission to fund the defence; instead, it requires the Lord Chancellor to issue regulations creating a mechanism for payment out of central funds. It is essential for two reasons that we take that step: first, to prevent the commission from steamrollering smaller organisations to ensure that its view of the law becomes enshrined as precedent and, secondly, for the sake of justice. Neil Addison, a barrister, has provided advice to the Christian Institute on this matter, and says:
	"Under clause 30 the Commission is allowed to give financial assistance (in essence a form of legal aid) to persons bringing legal proceedings either for Discrimination or under the Human Rights Act. If the assisted person wins their case then the Commission can recover these legal costs (clause 31). However there is no provision in the Act, or in existing legal aid legislation, for individuals or organisations to be given legal aid if they are being investigated by the Commission or are being sued with the backing of the Commission. Nor does there appear to be any provision for a person or an organisation to recover their legal costs in defending themselves from an investigation or in fighting a legal claim backed by the Commission. I consider that this omission could well be in breach of the Human Rights Act".
	Mr Addison goes on to say:
	"In the case of Steel and Morris v UK . . . (the McLibel case) the European Court of Human Rights accepted that legal aid should be granted in Civil Cases where the resources between the parties were significantly different and where issues involving Convention Rights are involved."
	I believe that there is clearly a case to answer.
	This amendment caters not only for defence against commission-backed legal action, but also for defence against other enforcement actions which it may take. In addition, it would benefit individuals as well as charities. It particularly focuses on the religion or belief organisations, which are covered in Clause 59. This would entitle Alcoholics Anonymous, in my example, to apply for legal assistance to ensure it responds properly and fully to the case backed by the commission. My amendment does not say anything about means-testing; it does not establish the hurdles which must be passed before legal support can be obtained. That is for the noble and learned Lord the Lord Chancellor. However, what my amendment does establish is the principle that, in order to avoid great inequality between the parties as a result of the involvement of the commission, aid can be given.
	When we discussed this issue in Committee, it was suggested that there was no need for such a provision because the commission would never, ever back a legal action that was not thoroughly worthy. Sadly, in the legal world, we know of many miscarriages of justice where mistakes have been made. We are all human. Are we to believe that unlike the police and the CPS, the commission is to be staffed by angels who will never make mistakes, and never allow partiality to affect their judgment? It was also asserted that none of the existing commissions has ever backed an inappropriate legal action. I am afraid that that is not strictly true.
	I know of at least one case to support my assertion—the case of Bill Parry v The Vine Christian Centre, which I raised repeatedly during our long discussions on the passage of the Gender Recognition Bill. The importance of that case is that the Equal Opportunities Commission supported the protagonist. The case was thrown out by the court at the first opportunity. It was recognised as a bad case, yet the commission supported it. I cannot believe that that is the only example. Of course, I do not say that all cases supported by the commission would be like that—in fact, there would probably be very few—but we must have some mechanism for ensuring that unworthy cases do not succeed simply because of the inequality of resources between the parties. If Mr Addison is right, failure to do so may even result in a breach of the European Convention on Human Rights. I beg to move.

The Lord Bishop of Chelmsford: My Lords, I have some sympathy with the concerns expressed in the noble Baroness's amendment. Here, and in one or two further issues that are to be raised, we are entering the world of civil society organisations and in particular, as the noble Baroness pointed out, of small charities, of which people in my position are frequently patrons and seek to be supporters. Very often not only are such organisations working on minimum funding arrangements but their trustees are local people who give their time voluntarily. We need to get on the inside of the way in which those organisations field these issues; we shall come to subsequent issues in a minute, but they need some comfort on these matters. Whether or not the amendment achieves that appropriately, we need to hear the concern that lies behind it, because I know bodies of trustees of small organisations who will be anxious.

Baroness Miller of Hendon: My Lords, I am quite sure that the Minister will not be surprised when I say that I support my noble friend, because we had similar concerns in Committee. The Minister at that stage pointed out that there was a defect in the idea that the respondent should be funded by legal aid. My noble friend's amendment seeks to remedy that, and she has come up with a better amendment than mine was. Funnily enough, although I do not think I mentioned the matter in Committee, we also had concerns about the possible breach of the convention on human rights. At the end of the day, if the respondent is not in a position to defend his case properly, he might be in some difficulty. I shall be very interested to hear what the Minister says in response.

Lord Lester of Herne Hill: My Lords, this gives rise to a difficult and familiar problem that goes well beyond the scope of the Bill—that is, what one does to help the impecunious respondent or defendant in civil proceedings who is not poor enough to receive legal aid, or when there is no legal aid because the case is an employment tribunal. In my personal experience, I can recall only one case in which a very small business may have been unjustly treated because the case had to go to Luxembourg before a knotty point of law could be decided—and the business was a very small one indeed. So I understand the problem and am sympathetic to it.
	Of course, equality commissions often back cases that fail. The EOC, which is the one that I know best, does not have much money for legal proceedings and is extremely stringent about how funds are provided. I see the noble Baroness, Lady Turner, nodding; she has direct experience of that, too. So they are not some great Goliath against a David or Davida; they have very limited funds.
	There are mechanisms in place to deal partly with the problem. One involves cost rules, if the case is in an ordinary court. Even in an employment tribunal, if a party behaves unreasonably it can be punished in costs, which is a very useful disincentive to irresponsible behaviour. If a case is vexatious or abusive, a tribunal court will deal with it. But in the last resort, as I am sure will be confirmed, legal assistance can be provided where there is a lack of equality of arms and where not to provide it would result in a violation of fairness under common law or under the convention. The problem is that, if we were to pass this amendment, we would build a conflict of interest into the same body that is funding the weak claimant. It would have to fund both sides. That would be a very difficult thing to imagine.

Baroness Ashton of Upholland: My Lords, I am grateful to the noble Baroness, Lady O'Cathain, for raising this matter. This is an area about which the noble Baronesses, Lady O'Cathain and Lady Miller of Hendon, are genuinely concerned. We need to have a further conversation about this matter as I was unable to have the length of conversation with the noble Baroness that I had planned. That was entirely my fault.
	The noble Lord, Lord Lester, gave some of the answers that I would give about opportunities. However, I want to make two or three general points as a precursor to the conversation that we need to have. First, I believe we all agree that the primary approach of the commission is to promote and support good practice. Therefore, we are talking about a situation that will arise only rarely when it resorts to its regulatory powers—and when attempts to secure improvement through providing advice and guidance have failed. It will support cases brought by individuals only in a very few cases. Therefore, I do not believe that in general terms we have to fear arbitrary, unreasonable or disproportionate action. The commission's powers are modelled on those of the existing commissions, who have used them sparingly and strategically. We expect the new commission to do no less.
	I understand the concerns about the impact on a faith or other body that regulatory action by the commission might bring. While it is possible, of course, that individuals, charities and religious or belief organisations could become subject to discrimination proceedings, we need to remember, as the noble Lord, Lord Lester, said, that the great majority of cases are brought before employment tribunals where the procedures are simple and straightforward so that formal representation is not required. Procedures have recently been improved further. For this reason legal aid is not available in employment tribunals in England and Wales for either side. Should an individual faith leader face discrimination proceedings in the county court, he or she would be eligible to apply for legal aid, subject to the standard means and merits test that exists for accessing some public support. It is, of course, possible for faith bodies, who might face proceedings as employers, to take out insurance against the costs of legal representation and damages against them in the courts.
	The commission will have the power to compel evidence in an investigation, and I recognise that this could be onerous on an individual or small organisation. However, there is a safeguard to check the powers of the commission and to ensure that they are not used irresponsibly. Schedule 2 enables that a person served a notice to provide evidence may apply to a court to have the notice cancelled on the grounds that it is unnecessary or unreasonable. The Bill provides for representations to be made and for the commission to consider representations made in relation to an inquiry, investigation or assessment. No party is required to make such representations, nor need they be made by a lawyer.
	A person subject to an unlawful act notice may or may not have a requirement attached for an action plan. Such a person would be entitled to apply to a court to have the notice cancelled, but is not required to do so. A person applying to a court to have a notice cancelled would be entitled to request an award for costs if they won the case.
	If the commission were to apply to a court for an injunction under Clauses 26 or 27 or bring judicial review proceedings, it would be incumbent on it to make the case. The respondent would, however, be entitled to make their case to the court and although they could represent themselves, it is reasonable to assume that they would instruct legal representatives. However, were they to be fighting an unsuccessful application by the commission for an injunction, as the noble Lord, Lord Lester, said, there is a likelihood of the court awarding costs.
	I have deliberately tried to set out those points very briefly but in summary it is not the intention in setting up the commission that it will use its powers to pick on individuals, charities, religious or belief organisations or, indeed, small businesses. As a public body the commission is obliged to act reasonably and can be challenged in the courts if it does not. I believe that public support for the commission would soon disappear if it was considered to behave oppressively or unfairly. As I said, its enforcement powers are closely modelled on those of the existing commissions. There are procedures in place in the courts and employment tribunals to ensure that completely unfounded or vexatious cases are thrown out. Tribunals can award costs against a litigant in some circumstances. In county courts or the High Court costs are frequently awarded to the subject of unsuccessful proceedings.
	The Government could not support setting up a new source of legal aid funding for the need that we are discussing, not least because inevitably it would be given at the expense of other needs. I doubt that there would be widespread agreement that that would be justified. However, I undertake to continue discussing the matter. The noble Baroness, Lady O'Cathain, deserves the attention of officials who can explain in greater detail precisely how the provision would work. She can then make a decision whether to pursue the matter further.

Baroness O'Cathain: My Lords, I thank all noble Lords who have spoken in this debate. I am very grateful to the right reverend Prelate for explaining the whole matter a lot better than I believe I did. I am also very grateful to the noble Lord, Lord Lester. He referred to the Equal Opportunities Commission and said that it did not have much money. However, we should not forget that the commission which is being set up will have a lot of money. I am also extremely grateful to my noble friend who supported me so ably. Noble Lords who intervened in the debate will realise that I am most grateful to the Minister. I am particularly grateful to her for offering to discuss the matter further. I have no doubt that that will help.
	The Minister made three points. First, she referred to the commission's role of promoting good practice. That is fine in general terms but we are talking about the exceptional case where something goes wrong. The implications of that for the commission are not that bad; it might not even suffer reputational damage. However, the implications for a small organisation could be catastrophic. We must pursue that matter further.
	Secondly, the Minister referred to faith bodies taking out insurance. I am sure that not a single Member of your Lordships' House does not realise how expensive insurance is now. I do not believe that small organisations such as those mentioned by the right reverend Prelate could afford that. That brings me neatly to the third point; namely, that you would have to apply to a court. A small organisation would have to obtain legal advice and, because of its memorandums and articles of association or whatever, would probably have to consult a lawyer down the road whom it knew and thought might be able to help. However, that is not a fair situation; it is rather a David and Goliath situation. Therefore, I am still concerned but my concerns have been allayed, certainly for the time being, by the generous response on the part of the Minister. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 36 [Unlawful]:

Lord Falconer of Thoroton: moved Amendment No. 102:
	Page 20, line 42, after "Part" insert "(except section 32(2A))"
	On Question, amendment agreed to.
	Clause 37 [General]:

Lord Falconer of Thoroton: moved Amendments Nos. 103 to 104:
	Page 21, line 15, leave out "communities" and insert "groups"
	Page 21, line 18, leave out "10" and insert "8"
	On Question, amendments agreed to.
	[Amendment No. 105 not moved.]
	Clause 41 [Orders and regulations]:

Lord Falconer of Thoroton: moved Amendment No. 106:
	Page 23, line 44, at end insert—
	"(a) section 16(3),"

Lord Falconer of Thoroton: My Lords, these amendments respond to a recommendation of the Delegated Powers and Regulatory Reform Committee. I indicated our intention to do this at Second Reading. Parliament is involved in the procedure for bringing into force the commission's codes of practice. This involves laying the draft before Parliament and allowing for a resolution of either House within 40 days that it should not proceed. This follows the existing provisions in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995.
	However, there is no standard procedure for revoking a code of practice. As the Bill currently stands, the Secretary of State would revoke a code by order at the request of the commission without any parliamentary procedure.
	The Delegated Powers and Regulatory Reform Committee recommended that the same considerations for making a code should apply to revoking a code; that is to say, Parliament should be involved. I am happy to accept that recommendation. Consequently, we have brought forward this amendment and Amendment No. 109. The effect of these amendments is to require that revocation of codes made by the new commission, or those in existence and made by the existing equality commissions, will be subject to a negative resolution parliamentary procedure. I beg to move.

On Question, amendment agreed to.
	Clause 43 [Transitional: the Commission]:

Lord Boston of Faversham: My Lords, in calling Amendment No. 107, I have to point out to your Lordships that if this amendment is agreed to, I cannot call Amendment No. 108.

[Amendment No. 107 not moved.]

Lord Falconer of Thoroton: moved Amendment No. 108:
	Page 25, line 9, leave out "10" and insert "11, in so far as it relates to disability"
	On Question, amendment agreed to.
	Clause 44 [Transitional: functions of the dissolved Commissions]:

Lord Falconer of Thoroton: moved Amendment No. 109:
	Page 25, line 35, at end insert—
	"(5) An order under subsection (3)(a) shall be subject to annulment in pursuance of a resolution of either House of Parliament."
	On Question, amendment agreed to.
	Clause 45 [Religion and belief]:

Baroness Miller of Hendon: moved Amendment No. 110:
	Page 25, line 42, after "or" insert "similar"

Baroness Miller of Hendon: My Lords, in moving Amendment No. 110, I shall speak also to Amendment No. 168. They make identical amendments to Clauses 45 and 78 by giving a closer definition of "belief". As drafted, the Bill says:
	"'belief' means any religious or philosophical belief".
	The word "or" indicates that two separate things are being protected—a religious belief and a philosophical belief. The amendment makes it clear that the philosophical belief must be similar to a religious one and not be any old concept, even though "concept" is part of the heading of the group of clauses.
	The Oxford English Dictionary defines a philosophy as:
	"a theory or attitude that guides one's behaviour".
	As can be seen, while all religions are based on a philosophy, not all philosophies are religious in nature. The noble and right reverend Lord, Lord Carey, was reported in the Times as speaking about religious philosophies, clearly indicating that there are also non-religious ones. A diligent search through my reference library enabled me to find over 30 different philosophies before I gave up looking. Interestingly enough, most of them had the suffix "ism". Platonism, stoicism, hedonism, Hegelianism, existentialism, to name but a few, are the slightly more pronounceable ones. I looked up Epicureanism, and it sounds quite interesting. Marxism is a philosophy—so I dare say is Thatcherism, although I know which of the two I prefer. So is—very sinisterly—Nazism, which is based on the philosophy clearly set out in Hitler's book Mein Kampf. Hitler's henchman, Joseph Goebbels, gave the game away in 1933 when he said:
	"What matters is not so much what we believe; only that we believe".
	For the purposes of the Bill, which imposes restrictions to a certain extent on freedom of thought and speech, and the perfectly proper protection of people against harassment on the grounds of their religion, what we believe does matter. Why should anyone not be allowed to refuse to employ someone who is a neo-Nazi or refuse to let a lecture hall to those who want to use it to preach another "ism"—racism? There is another aspect where protection of the right to oppose a particular philosophy is essential. I refer to the mind-bending cults such as the Moonies and Scientology, whose gullible recruits sometimes need rescuing from their own folly.
	The noble Lord, Lord Lester, mentioned to the Committee that he is a,
	"passionate, disbelieving Jewish agnostic".—[Official Report, 13/7/05; col. 1109.]
	His agnosticism—another "ism"—is similar to a religious philosophy and is fully protected by the Bill, except perhaps if he decides on a career change and wishes to become a Rabbi.
	In the Employment Equality (Religion or Belief) Regulations 2003, the Government defined "religion or belief" as:
	"Any religion, religious belief, or other similar philosophical belief".
	The Government had no difficulty in confining the philosophical belief to one that is similar to religion and not including any other type of theory. The noble Baroness, Lady Scotland, tried to draw a difference between the definition in the regulations and that proposed in the Bill. It is with some hesitancy that I disagree with a distinguished lawyer such as the noble Baroness, but with absolutely no disrespect, I feel that she was seeking to find a distinction without a difference. She told your Lordships that in drafting the Bill:
	"It was felt that the word 'similar' added nothing and was, therefore, redundant".—[Official Report, 13/7/05; col. 1109.]
	The fact is that one little word of just seven letters does add something. It ensures that bona fide religious beliefs are protected, not some weird, wonderful and often thoroughly objectionable philosophy. Equally, the agnosticism of the noble Lord, Lord Lester, is a sufficiently similar philosophy to definitely be protected by the two sections, as is the "ism" mentioned by the noble Baroness, Lady Scotland, when she described humanism.
	I am certain that there is no shortage of ink or paper, and even though the Government think that "similar" is redundant, its presence in the Bill will avoid all possible doubt. I ask the Government to reconsider. I beg to move.

Lord Lester of Herne Hill: My Lords, I had not dreamt of saying anything here, but since I have been named a couple of times perhaps I could say that I think I am catered for by the reference to belief including a reference to a lack of belief. It would be odd to talk about religion or "similar" belief when it would be religion or dissimilar lack of belief. Therefore, I would be aggregated with others who have a great advantage from their point of view having belief. Like E M Forster:
	"I do not believe in Belief".

Baroness Scotland of Asthal: My Lords, I say to the noble Baroness, Lady Miller, that I very much enjoyed the way in which she put the last amendment, and if anything was likely to seduce me to change my mind that was probably it. The reason it does not is really the reason given by the noble Lord, Lord Lester. We have the issue that in fact disbelief is dissimilar from belief. The lack of belief and belief is included in this. The purity of the drafting means that we get ourselves in more trouble by trying to see them as the same. It was for that reason that we thought it was better left out. The noble Baroness will know that initially we had thought that maybe "similar" would be apt, but on mature reflection we considered that it was actually better left out. I know that the noble Baroness does not necessarily take that view, but I know that the noble Baroness who sits behind me would take a strong view if I were to say that her humanism is similar to the noble Baroness opposite's belief. It is for those reasons that we feel that we cannot include it. I hope that the noble Baroness if not content might at least accept the current position in which we now find ourselves.

Baroness Miller of Hendon: My Lords, the Minister is most certainly correct in saying that I am not content; I am definitely not content. Probably, at the end of the day, the draftsman who worked on the Employment Equality (Religion or Belief) Regulations was a different draftsman from the one who drafted this amendment. Had it been the same draftsman, there would not have been any difficulty in having "similar" in the Bill. It is a pity.
	The Minister talked about "mature reflection". I am certainly mature, and so will my reflection be. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 46 [Discrimination]:

Baroness Scotland of Asthal: moved Amendment No. 111:
	Page 26, line 5, leave out "religion or belief" and insert "the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief)"

Baroness Scotland of Asthal: My Lords, government Amendments Nos. 111, 112, 113, 114, 116 and 118 stand in the name of my noble and learned friend Lord Falconer of Thoroton. Together, they make it clear that discrimination and harassment under Clauses 46 and 47 can be unlawful even when committed against a person of the same religion as the discriminator or harasser. That is the intention, and we believe the effect, of the clauses as they stand but the new formulation resolves any doubt on the matter. The noble Lord, Lord Lester, raised concerns about the clauses, so we took them away to see whether we could make them clearer, because it was clear in Committee that we all wanted the same thing. The question was whether the wording was correctly drafted. I hope that the way in which the amendments are drafted gives the clarity that we all sought. I beg to move.

Baroness Miller of Hendon: My Lords, I am grateful to the noble Baroness for explaining exactly what the amendments do, as I thought it was surprising to prohibit discrimination between persons of the same religion; it had not occurred to me before. I want to ask her a couple of questions on that. Presumably the provision might mean, for example, that Sunni Muslims would not be able to discriminate against Shia Muslims or vice versa. It should not inhibit discrimination between different branches of Christianity. It would not be for me to interfere and think of examples of that, but there was a recent case in the Jewish religion when the orthodox Jewish authorities, in the person of the Chief Rabbi, seemed to discriminate against a boy by refusing him admission to a faith school on the grounds that his mother's religious practices after her conversion were in his opinion inadequate for that school. I wondered at the time whether that was proper or somewhat extreme; I do not know, but would it be caught by the amendment?

Lord Lester of Herne Hill: My Lords, I think that I raised the subject, giving the example of an orthodox Jew and a reformed or liberal Jew. The Government have indicated that they thought the matter was covered already, but the ingenuity of parliamentary counsel has removed any doubt about it, so I am grateful.

Baroness Scotland of Asthal: My Lords, the short answer to the noble Baroness's question is yes, because what is important is the religion of the person complaining about the discrimination. We do not think it right that people can be discriminated against because they happen to come from a different sect of a religion from the person who discriminates. That is why we wanted to make it absolutely clear in the Bill.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 112 to 114:
	Page 26, line 8, leave out "the reference to religion or belief is" and insert "a reference to a person's religion or belief includes"
	Page 26, line 9, leave out paragraph (a).
	Page 26, line 10, leave out "B or any other person except A" and insert "he"
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 115:
	Page 26, line 13, leave out "requirement, condition" and insert "provision, criterion"

Baroness Scotland of Asthal: My Lords, Amendment No. 115 replicates one proposed by the noble Lord, Lord Lester, in Committee. At that time, we resisted the amendment as we believed it preferable to use "requirement, condition or practice", as in the Bill, rather than "provision, criterion or practice", words derived from European directives and used in the Employment Equality (Religion or Belief) Regulations 2003. However, further discussions have taken place between the noble Lord and others. They have convinced us that, for the sake of consistency, in this instance we should adopt the words now proposed. We are grateful to the noble Lord for raising the issue. I beg to move.

Lord Lester of Herne Hill: My Lords, I feel almost as though it is Christmas Day. We are very glad of and grateful for the amendment, because it adopts the most generous definition of indirect discrimination rather than a more formal one, and therefore it is best practice rather than second-best practice.

On Question, amendment agreed to.
	Clause 47 [Harassment]:

Baroness Scotland of Asthal: moved Amendment No. 116:
	Page 26, line 41, leave out "religion or belief" and insert "the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief)"
	On Question, amendment agreed to.

Baroness Miller of Hendon: moved Amendment No. 117:
	Page 26, line 41, leave out "or effect"

Baroness Miller of Hendon: My Lords, on his Amendment No. 120, the noble Lord, Lord Lester, will I am sure shortly explain his concern about Clause 47. It is right to tell the House that, to some extent, I share his concerns. However, in the litigious age in which we live, and in the atmosphere of political correctness which sometimes gives rise to excessive expectations by individuals and absurd decisions by local and other authorities, it is right that some boundaries should be set on the definition of harassment. Regretfully, therefore, I cannot support the proposal to reject the whole of Clause 47. I also take the practical point of view—it is possible that the Minister, when replying to the noble Lord, Lord Lester, will disagree with me—that it is unlikely that the Government would wish to delete the whole clause. We certainly do not want to see it ping-ponging up and down the corridor over this issue.
	My amendment resolves the noble Lord's problem, as well as my own. "Or effect" is, to use the words of the Minister in an earlier debate, redundant. Indeed, the phrase actually imports a wholly unacceptable test in deciding whether harassment has occurred. It would enable someone to complain, or at least to launch a complaint, that such and such an event had violated his dignity, humiliated him, or made him feel that he was in a hostile environment. The real test of whether harassment has occurred should be only whether it was intentionally and specifically done for one of the objectionable purposes listed in subsection (1).
	We have seen educational authorities trying to change the name of Christmas to the "Winter Festival", or banning nativity plays or even the construction of Christmas cribs. There are reports that signs outside churches have been called provocative. It is not the non-Christian religious authorities that make those ridiculous complaints. It is not the Muslim, Jewish or other religious communities that raise those spurious objections. It is the do-gooders who take up unnecessary and unasked-for cudgels on their behalf. Personally, I have never had any problems with Christmas plays at school. My husband tells me that, when he first met me, I told him that I had been appropriately cast as an angel in one such play, but I confess that I do not recall that at all.
	The inclusion of "effect" leaves it wide open for a person to display unreasonable or even malicious sensitivity by claiming that he felt harmed by the Christmas tree in Trafalgar Square, or that someone exercising reasonable freedom of speech by making some religious criticism, even of his own religion, was creating an offensive environment. In subsection (3) the Government, to give them credit, have tried to modify the effect of subsection (1) by introducing a sort of test of reasonableness. But even then, that test is the complainant's subjective perception and not the reasonable perception of the man on the top of the Clapham omnibus.
	The redundant word "effect" has crept into the Bill, possibly through the verbal exuberance of the draftsmen. I am told that the test of good drafting is, "least said, soonest mended". To remove the word "effect", to which I object, will at one stroke remove the basis for frivolous litigation and, I hope, with the remainder of the clause fully intact, the Minister will feel able to agree. I beg to move.

Lord Monson: My Lords, I strongly support the amendment for which the noble Baroness, Lady Miller, has argued powerfully. Suppose someone was addressing a gathering of people who were not necessarily known to him or her, and expressed the view that men who made their wives or daughters cover themselves from head to toe were living in the middle ages and treating their wives or daughters like cattle. That is a proposition with which many Muslims, including virtually all my Turkish friends, would strongly agree. However, many Muslims would take exception that, including, perhaps, someone in the audience, who himself had made his wives and daughters cover up. He might claim that by expressing that view his dignity had been violated. So the argument for the amendment is extremely strong and I hope that the Government will accept it.

Lord Lester of Herne Hill: My Lords, I hope to persuade the noble Baroness, Lady Miller, that she is being far too moderate, but I shall try to do that when I deal with the amendments grouped in my name, because I believe that we should throw out Clause 47 and its ancillaries altogether.

The Lord Bishop of Chelmsford: My Lords, the issue is well dealt with from the point of view of these Benches in the forthcoming amendment tabled by the noble Baroness, Lady O'Cathain. We would be wise to address some of the substantive arguments surrounding the issue of harassment at that point—and if not then, when we consider the amendment tabled by the noble Lord, Lord Lester.

Baroness Scotland of Asthal: My Lords, I would hate to deprive the noble Baroness of a proper response at this stage. I shall try to do that without going into too much detail. I am sure that the noble Baroness knows that harassment applies only to premises and public functions, it does not apply to any of those other issues. I do understand why the noble Baroness is concerned about "or effect".
	But "or effect" is the same wording as is to be found in other legislation that is directly related to Jews and Sikhs, and it is for that reason that it is included—not least because simply to rely on the purpose and not the effect would mean that it would always be open to those who had the "effect" of discriminating to say, "I didn't intend it". It is extremely difficult to dig beneath that and discover what their intention was. The way in which the legislation has worked to date in the other form was, indeed, putting those two together. So I would urge the noble Baroness to go in the other direction. We will debate these matters more fully when we come to the amendment tabled by the noble Baroness, Lady O'Cathain, and that of the noble Lord, Lord Lester.
	Our position, certainly so far, is that the way in which we have drafted these clauses does hold the balance. We have tried hard to take on board the concerns that we have heard all around the House about such difficulties and we do understand their sensitivity. I hope that I can provide the appropriate degree of reassurance to the right reverend Prelate and the noble Baroness, Lady O'Cathain, about their proper concerns, but I say now that we continue to look at all these issues and will continue to look at them after this stage of the Bill.

Lord Monson: My Lords, was I raising a red herring in talking about criticising the veiling from head to toe of women? Is that something which in fact would not be caught by the Bill as it stands?

Baroness Scotland of Asthal: My Lords, I do not think that making comments of that type would be caught.

Baroness Miller of Hendon: My Lords, I thank the Minister for her reply. It is clear that later we shall discuss amendments tabled by the noble Lord, Lord Lester, and my noble friend Lady O'Cathain. So there is no purpose in saying anything other than that, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Scotland of Asthal: moved Amendment No. 118:
	Page 27, line 2, leave out paragraph (a).
	On Question, amendment agreed to.

Baroness O'Cathain: moved Amendment No. 119:
	Page 27, line 12, at end insert—
	"(5) The manifestation of beliefs or practices, or the display of symbols or artefacts, on grounds of religion or belief, is not harassment for the purposes of subsection (1) unless undertaken with the purpose described in subsection (1)(a) or (b)."

Baroness O'Cathain: My Lords, this is the second bite of the three-bite cherry, as we now realise. But the fact that three of us have tabled such amendments should make people realise that there is deep concern.
	The amendment was drafted by the chief legal adviser to the Archbishops' Council and I am delighted to have been able to table it on their behalf. I have done so because I share the concerns of the noble Lord, Lord Lester, and other noble Lords who are concerned about the implications for free speech of Clause 47.
	In particular, at Second Reading and in Committee, I raised concerns that the Bill could be used by those who are hostile to our Christian heritage. There is a realistic fear that people who want to make mischief for religious groups will raise claims of harassment to try to secure the removal of signs and symbols of religious faith.
	A large part of the problem arises because of the Government's policy of wanting to persuade the courts to turn religious groups into public authorities if they carry out public functions. That could make them subject to litigation under the Human Rights Act. It would impose regulatory duties, such as those found in Clause 83 and, crucially, it could well result in litigation for harassment under Clause 47. No one is quite sure which religious organisations would be converted into public authorities. But many churches might be caught, simply because they want to act out their faith by being involved in the delivery of public services, such as services to the homeless.
	From the Dispatch Box, on 13 July, the noble Baroness, Lady Scotland, regarding Clause 47, stated:
	"I can see situations where public functions are carried out in church halls or other places associated with worship where objects on display in those premises, such as crucifixes, might conceivably lead to accusations of harassment".—[Official Report, 13/7/05; col. 1130.]
	I was also concerned that the Minister suggested that making Bibles available could also be considered harassment unless they were specifically requested. Why should it be regarded as unlawful for a Christian organisation to have bibles and religious literature lying around? Existing public authorities would also suffer as a result of Clause 47. A hospital, for example, which allows Gideon bibles in bedside lockers could find itself defending a legal action for harassment. Surely, that is not what we want?
	Public authorities funding religious groups could also be sued. In turn, that could result in fewer and fewer religious groups obtaining public funding. The Minister made a commitment to look at the issue further—she has already stated that the Government are doing so—and to see if there is any way to exempt the display of religious objects from the definition of harassment. I understand that the reason the Government have not tabled an amendment is that officials now take a different view on how harassment could be interpreted by the courts. That indicates that there is legal uncertainty.
	The Home Office's new reassurances on that point amount to no more than a suggested legal argument upon which a church could rely. Maybe they will win. Maybe they will lose. Maybe they will spend a lot of money on legal fees finding out whether they win or lose.
	It is notoriously difficult to predict how legislation will be used. Perhaps I may cite an example. When the previous government passed the Protection from Harassment Act 1997, it was intended to target stalkers and we thought that the number of prosecutions would be in the hundreds. In fact, I understand that it is now routinely used to tackle animal rights extremists far more than stalkers, and there are thousands of prosecutions a year, not hundreds. I do not object to that; I just use it to illustrate how, regardless of our intentions, the wording of an Act of Parliament can be used in unpredictable ways. It seems to me that we are leaving a lot to chance when we could simply place words in the Bill to make it clear that it is not intended to be used in the ways that I have suggested.
	I give credit to the Government for their considerable efforts to prevent the Equality Bill being used to attack, rather than defend, religious organisations, but they seem to be peculiarly resistant on this point—or, at least, they have been until now. I think that I discovered a slight chink earlier this evening—I live in hope. That is why I tabled the amendment. I am very grateful for the advice of the Chief Legal Adviser to the Archbishops' Council. He and other officials have been engaged in prolonged discussions with the Home Office on all these issues, and this amendment is their response.
	The amendment does not put forward a fundamental exception to the definition of "harassment"; it does no more than enshrine the Government's own reassurance about Clause 47 by making clear that it cannot be used to force the removal of religious symbols or manifestations of religion, such as the saying of prayers or the putting out of Bibles. Surely that is perfectly reasonable. How many of us would want to see a religious group hauled through the courts over matters such as these? I am sure that none of us wants to end up like the United States, where there is a constant stream of litigation from anti-religious groups seeking to erase all public reference to the Christian faith. There, an atheist is currently litigating to remove the phrase "under God" from the pledge of allegiance. It occurred to me that the harassment provisions could lead to court cases with attempts being made to remove the word "God" from our national anthem. I sincerely hope that that is not so.
	The amendment is very modest. It specifically does not protect actions which are deliberately intended to harass. None of us wants that. However, it does give certainty where currently there is none. If Ministers and their officials can change their minds over the interpretation of this clause as it stands, so can the courts. And what about local authority legal advisers and those advising charities? Will this uncertainty not lead to them taking a very cautious approach, removing religious symbols rather than risking legal action? The Minister may give assurances on the Floor of the House, but most lawyers do not read Hansard; they will be reading the wording of the Act. Such uncertainty creates a risk of gross infringement of religious liberty. Quite unnecessarily, it places religious groups which carry out public functions in a precarious position.
	The Prime Minister is on record as supporting the contribution of "faith-based welfare" providers and supporting their ability to operate consistent with their religious ethos. In a speech shortly before the election, the Prime Minister said that churches made a "visible, tangible difference". He said that he wanted to see them,
	"play a bigger, not a lesser, role in the future".
	That was on BBC News on-line on 22 March 2005. But if those who receive public money to provide public functions are placed in the firing line under the Bill, they will play a lesser role and not a bigger role as the Prime Minister wants. They will be frightened off. They will be excluded by nervous funding authorities.
	I am told that the Salvation Army has been making strong representations to the Home Office about these matters. I believe it would be terrible if organisations such as that withdrew their services because they felt that they were likely to be targeted under Clause 47. Whatever one's religious beliefs, I think that we all have the greatest respect for the Salvation Army, and it would be appalling if the Bill were to make that happen.
	Simple wording such as that contained in the amendment will solve the problem. I hope that the Government will look kindly on it. I beg to move.

The Lord Bishop of Chelmsford: My Lords, had the communication system between the national institutions of the Church of England and this House worked, my name would have been added to the amendment, and I rise to support it. At stake here are two issues which need clarity. The noble Baroness's speech has clearly set them out and the amendment is aimed at producing clarity whereas, at present, we seem not to have it.
	The first issue is the implication and extent of Clause 54 for civil society and religious organisations. As I understand it, the present law now stands following two clear decisions by the Court of Appeal on the implications of the Human Rights Act for charities. Charities and voluntary organisations which provide services to the public with the benefit of public funding will not qualify as public authorities for the purpose of Clause 54 other than in exceptional circumstances. But I understand that the Government are not entirely happy with that legal ruling. Therefore, there is now in the public forum an uncertainty about where we stand on that issue, and we need some clarity on it.
	An important point of principle is at stake here. We need to keep a clear distinction between civil society, charitable and religious organisations and the state. The trouble with an over-generous interpretation of Clause 54 is that, in drawing civil society's organisations widely into the public authorities, that distinction will be blurred, and I think that we need some help with that.
	The second issue that has been raised concerns the meaning of the word "harassment". It is clear that from a popular point of view and understanding of that word there is no desire by responsible organisations in the religious, charitable or voluntary sectors to engage in activity that manifestly harasses people. But, as the noble Lord, Lord Lester, pointed out in Committee, the phrase "violation of a person's dignity" is a very uncertain concept in law. It might give ample opportunity, especially in the context of religious beliefs and practices, for people to challenge what they find to be unwelcome. I think that we need some clarity on those issues if we are to have contentment. If we can get that clarity, that will help us.
	However, as the noble Baroness has just said, the Government may want real partnership between independent, religious-based organisations which make a contribution to the public welfare and are publicly funded in those properly agreed partnership arrangements. But if there is a fear that a clause such as this can be used to prevent those organisations maintaining the integrity of their beliefs, which is the driving motivation for their work in the public sphere, there will be withdrawal. We need to address that issue. I understand that the Government want to work with us on this matter and I am sure that there is much commonality of understanding here but, if we could find a process for getting the wording right, that would help greatly. Therefore, what the Minister says in reply will be very important.
	The noble Baroness's amendment has our support because it expresses the concerns held widely in the churches. Perhaps I may say on behalf of these Benches that, if the national institutions of the Church of England are concerned, that concern really should be taken seriously.

Lord Lester of Herne Hill: My Lords, what would be convenient for the Minister? Would it be convenient for her to reply to the debate so far and then for me to make my contribution, or would she like me to speak now so that she can then reply to everyone? It is a matter for her convenience and that of the House.

Baroness Scotland of Asthal: My Lords, it is a matter for the House. If noble Lords want to take that course, I would in any event answer the point made by the noble Baroness, Lady O'Cathain, and deal with the point made by the noble Lord subsequently. If it is convenient to the noble Lord, Lord Lester, for me to answer the noble Baroness, the noble Lord can then incorporate those points on his amendment that he feels I have not addressed adequately, when we move on to deal with it. Perhaps I can answer the noble Baroness first and the noble Lord can reserve his comments and ire for when he comes to speak.
	I believe that the noble Baroness, Lady O'Cathain, and the right reverend Prelate know that the Government understand the anxiety expressed by them on these issues. As my right honourable friend the Prime Minister made clear, we very much welcome and are grateful to the religious and nonreligious bodies for joining with us in a more holistic and caring way to meet the needs of those in need. We want to explore and enhance those opportunities for partnership. We are very sensitive to the issues to which the noble Baroness has properly alluded.
	Therefore, the question for us is: do these provisions that we have set out give the comfort that we all want to see? The noble Baroness will know that much time and effort has gone into considering the provisions to see whether they reassure us. We shall consider the issues raised by the noble Baroness and the issues that the noble Lord, Lord Lester, will raise before we come to a final conclusion. However, we believe that these provisions are satisfactory and I would like to explain why.
	We are very sympathetic to the thrust and purpose behind the amendment tabled by the noble Baroness, but it may be worth remembering that harassment will apply only in the areas of public functions, education and the management and disposal of premises. It will not apply to the provision of goods, facilities and services by private individuals or commercial or non-commercial organisations. Even within those areas, where the concept of harassment applies, an action should not normally constitute harassment when something is done solely on the grounds of A's own religion or belief—not the person who complains about it. If an action is to be regarded as harassment under Clause 47, there must be a reason for doing it that relates to the religion or belief—including the lack of religion or belief—of B or someone else. The Bill already makes this clear in Clause 47(2)(a), so it will not be enough that a person simply finds an environment offensive or intimidating. Therefore, we feel that the right to express one's own religion or belief is already protected by the provisions of the Bill.
	This does not mean that religious objects will never be covered by the harassment provisions. Posters which are clearly aimed at converting others to a particular faith, rather than celebrating a faith, could be considered harassment if they were deliberately brought or put in a situation to deal with B's religion. For harassment to be established, a poster would have to be shown to have violated B's dignity or to have created an intimidating environment for B. That would be on the basis that it should reasonably be regarded as having done so on B's perception and all the other circumstances. On balance, we believe it is right that people attending public functions should be able to do so free from fear of unwelcome proselytisation.
	The amendment that the noble Baroness has put forward is tempting in that it would rule out absolutely the possibility of a case of harassment arising from the display of religious objects, which has been the subject of much debate in the House. But we remain convinced that symbols that are present because of the religion or belief of the person or organisation that has put them there, will not give cause for a claim of harassment because they are there on grounds of A's religion or belief, not B's or anyone else's.
	Furthermore, the noble Baroness's amendment would result in a claimant who felt he or she had been exposed to unwelcome material deliberately aimed at his or her religion or belief while receiving a public service having to demonstrate the intent on the part of the provider to cause harassment. We believe that that would be an inappropriate extra hurdle to overcome in the context of the kinds of service we are dealing with here.
	I recognise that, once this Bill leaves this place, we will have no ability to control the interpretation that is put on it. That is the point made by the noble Baroness. I can certainly assure the House that we do not intend to sit back if we find that we are wrong about that and the Bill's provisions are impacting adversely on faith groups' ability to provide public services—which we value highly because they are effective. We shall retain through Clause 65, as we propose to amend it today, a power using the affirmative resolution procedure to create an exception in Clause 54 or to vary an exception in Part 2 which would enable us to step in if, for example, drug rehabilitation projects were found to be running into difficulties because of these provisions.
	We greatly value the contributions that a wide variety of faith and other community groups make to public service in this country. We shall seek to protect that through appropriate exceptions, rather than introduce inequalities in the definitions used to identify harassment. For those reasons, and with that assurance, I resist these amendments at this stage.

Baroness O'Cathain: My Lords, I thank the right reverend Prelate the Bishop of Chelmsford for so ably supporting me on this amendment. I thank the Minister, for whom I have great respect. But in this case she has not given me any crumb of comfort at all. The debate on the amendment tabled by the noble Lord, Lord Lester, might give us something—a third bite at the cherry—or we might be able to do something more. When the Minister spoke of the Bill leaving this place, all my alarm bells rang. I take absolutely no comfort in what may happen to the Bill when it goes down the corridor. I am sorry but I do not. That might sound horribly cynical, but I have been here long enough and I am long enough in the tooth to realise what can happen.
	The Minister made the point about a poster being deliberately provocative, so I would like her to consider this point. A great comfort that I know people with faith feel is seeing a poster that says,
	"Come to me all who are heavily laden and I will give you rest".
	Suppose a particular charity or church had a lunch club that was supported by a local authority and such a poster was put up on the wall, would that be regarded as harassment? The noble Baroness shakes her head, but the reality is that there are people out there with one sole objective and that is to cause mischief for people of faith. They do that; I have seen it; I have been on the receiving end of it. I am afraid that I am really concerned about this issue. Perhaps I am going over the top about it, but we need clarity and no uncertainty. The right reverend Prelate the Bishop of Chelmsford made that point. On the basis that I am very anxious to move forward and listen to what the noble Lord, Lord Lester, has to say about his amendment, for the moment I shall seek leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Lyell: My Lords, I have to advise the House that grouped with Amendment No. 120 is Amendment No. 126. If Amendment No. 126 were to be accepted, I would not be able to call Amendments Nos. 127, 128 and 129. That is a technicality.

Lord Lester of Herne Hill: moved Amendment No. 120:
	Leave out Clause 47.

Lord Lester of Herne Hill: My Lords, I share all the concerns that have been expressed. My task is to try to explain what is not yet clear. Some questions of fact need to be borne in mind when we examine the issue. My bottom line is that I hope the Government will ultimately decide to take this away to the Discrimination Law Review where it can be properly considered. That seems to be a sensible, practical outcome.
	The first point I draw to the attention of the House is that the Bill is rightly forbidding direct and indirect religious discrimination in education and housing and by public authorities. Therefore, the starting point is that we are already creating civil rights and civil wrongs to deal with direct and indirect religious discrimination in the three areas where the new tort of harassment is contemplated. So nothing I am about to say in any way undermines the need to tackle religious discrimination in those areas.
	Secondly, Clause 48 deals with goods, facilities and services. The Home Office, in its wisdom, has decided to exclude harassment from all goods, facilities and services provided to the public. Why, if there is to be a tort of harassment, should it not apply to an hotel or boarding house, or to anyone providing goods, facilities or services to the public? The answer is that the Home Office rightly and sensibly saw the awesome implications of creating a new civil right and civil wrong that would allow an individual victim to sue for the tort of religious harassment in all the situations covered by Clause 48. It was not worried only by the free-speech implications of dealing with booksellers; it simply knocked the whole of Clause 48 in the context of harassment into fairly long grass by saying, "That will all be dealt with by the Discrimination Law Review".
	The first important question to bear in mind is: why on earth has the Home Office not adopted the same sensible approach to the tort of religious harassment in the context of housing—there are very sensitive relationships between someone who manages a block of flats and the tenants—or of education—there are very sensitive relationships between those who run schools and the pupils—or of public authorities, including faith groups, charities and so on? I have received no coherent answer to that question—no answer at all—except that it is to secure consistency. I must therefore explain why it does not secure consistency. I am grateful to the Minister and her advisers for having met me to discuss these matters not once but twice. I am sorry to tax the patience of the House, but I need to give this explanation because someone must put on record why Clause 47 should be deleted at this stage and reconsidered. I apologise and I promise that it is the only long speech I shall make.
	I asked a Question of the Minister and on 10 October she gave a Written Answer in which she stated that the Home Office is,
	"unaware of what legislation other EU or Commonwealth countries are implementing to tackle religious discrimination and harassment".—[Official Report, 10/10/05; col. WA 70.]
	I found that a little surprising, because the Government have to decide how best to give effect to EU equality directives, including the concept of harassment on religious grounds. One might have supposed that it was relevant for the Home Office to ask itself how other member states had done that. I am not aware of any state of the European Union, or of the Commonwealth, which has applied the concept of the tort of harassment certainly in this kind of area. The Government should inform themselves about what is happening in other jurisdictions.
	It is important then to tell your Lordships that the tort of religious harassment in housing, education and public authorities is not required by European Union law. The EU directives expressly state that the concept of harassment in the areas they cover can be defined in accordance with national laws and practices of the member states. But Her Majesty's Government have not done that. In areas where EU law applies, they have simply copied in the undefined definition of the tort of harassment. The regulations giving effect to EU law have not given, as they could have done, a more concrete definition in accordance with British national law and practice. They have simply, like Clause 47, repeated the formula in the EU directives without definition.
	The next point is a little legalistic. In the case of Omega, the watch company, before the European Court of Justice, the Advocate General explained in her opinion why the concept of human dignity, which underlies all fundamental human rights, needs to be given concrete meaning and definition if it is to found legal rights and obligations. She said, about a case prohibiting games simulating acts of murder with submachine gun-type laser targeting devices, that,
	"there is hardly any principle more difficult to fathom in law than that of human dignity".
	She observed that both in international law and national legal systems, human dignity appears primarily as a general article of faith or as a fundamental or constitutional principle, not as an independent justiciable rule of law. This is because it is a generic concept with no traditional legal definition or interpretation. It does not have concrete substantive form. For that reason, speaking for myself, it cannot form the basis of an independent tort of harassment as it does in Clause 47.
	Furthermore, our British courts have declined to give the concept of human dignity any precise definition, although references to the term have increased since the Human Rights Act came into force. I repeat that the inclusion of this tort in this part of the Bill is not required by European law. In addition, there is no requirement to include it for reasons of consistency. On the contrary, the Home Office has already excluded it for the provision of goods, facilities and services to the public, even though the Race Relations Act 1976 applies it to goods, facilities and services across the board. So there is no consistency of argument about copying in, as the Minister puts it, for Jews and Sikhs the same for other groups. That is completely inappropriate. What she calls the references to Jews and Sikhs is the Race Relations Act, which applies to any ethnic discrimination. It includes harassment, but it has not been copied in for goods, facilities and services. There has been no explanation of the need to include the tort of harassment in the sensitive relations about which I have spoken.
	I submit that, given the undefined nature of what constitutes religion or belief, of what constitutes violating human dignity or of what constitutes "offensive environment"—not merely an intimidating one—in Clause 47(1); and given that there is no filter, no Attorney General, between the claimant and the defendant in proceedings brought under Clause 67, the inclusion of this tort would encourage divisions between different religious groups and different belief groups. Such litigation would not be in the public interest.
	A complainant could bring proceedings under Clause 67 claiming that her human dignity had been violated or that the defendant had created an offensive environment. For example, the owner of a block of flats, who is a believer in the well known evangelical Jews for Jesus movement and believes that Jews would be well advised to become Christians, and who does not discriminate against Jewish tenants and treats them totally equally, puts up a "Jews for Jesus" poster recommending that they do the sensible thing and turn to the other Abrahamic faith. The Minister agrees with those who said that that would be a tort, as he is doing it deliberately because of the Jewish tenants' religion, although there is no question of effect. I find it wholly unacceptable that the owner of the flats should be subject to a tort action. The same applies to a hotel or boarding-house, but, for unfathomable reasons, these are not covered, because they are under goods, services and facilities.
	I am almost coming to the end. The next point is that the Protection from Harassment Act 1997, which has already been mentioned, contains a general tort of harassment that is neutral, and could be used to deal with cases of religious harassment, if needed. That tort is available to deal with harassment that is not only religiously motivated but which is homophobic, or simply motivated by ill will. I do not understand why that tort would not be completely sufficient in this area.
	The inclusion of religious harassment in Part 2 is unacceptably vague. The tort sweeps too broadly, and threatens to be applied in a way that breaches the Convention rights of freedoms of others. It has been included arbitrarily, applying to housing and education but not to goods, services and facilities. The real mystery is that religious discrimination is already well protected under Part 2, and this is wholly unnecessary. All these points should be considered by the discrimination law review, and should certainly not be the subject of a tort that this House approves. Therefore, although I will not press the amendment to a Division today, I give notice that, unless we get rid of it before Third Reading, I will want to come back to it then. I beg to move.

Baroness Turner of Camden: My Lords, I thank the noble Lord for that extensive explanation. I recall that in Committee we talked about harassment in certain areas, and I thought that at one time the Government accepted a number of points that were made. Frankly I cannot see why it should be lawful for anyone to harass anyone. In this part of the Bill we are discussing education and schools. Does this mean that a religious maintained school would have an exemption to allow it to harass non-religious pupils? That would not be at all acceptable, and I cannot believe it is the intention. I hope the whole issue of harassment, which is referred to in this list of amendments, could be reconsidered by the Government.

Baroness Miller of Hendon: My Lords, with the leave of the House, before I comment on what the noble Lord has said, I would like to say a word about Amendment No. 119. I had intended to speak after the noble Lord, Lord Lester but somehow—the noble Baroness then made her comments—the opportunity went by. I would not like my noble friend to think that I was not supporting her amendment, as indeed I do.
	I am grateful to the noble Lord, Lord Lester, for that long explanation of why it would be better to remove Clause 47 altogether. I hope that the Minister will simply say in her response that she will take the whole matter away and think about it, so that we can make a decision over what needs to be done before Third Reading.

Baroness O'Cathain: My Lords, I rise briefly to give my full support to the amendment of the noble Lord, Lord Lester, to delete Clause 47.

Baroness Scotland of Asthal: My Lords, I assumed that the noble Baroness, Lady Miller, wholly supported the noble Baroness, Lady O'Cathain. She can rest assured that at no stage did I think there was a cigarette paper between them.
	The noble Baroness, Lady Turner, is right: the harassment is an important point. My response to the noble Lord, Lord Lester, is to recite all the reasons why we say Clauses 46 and 47 are important and should be in the form that they are in the Bill. Many of those arguments were fully recited when we were in Committee. I could add a few things about that, but I want to make it clear at the beginning that, even though I do not accept the premise upon which the noble Lord puts those matters, we would want to take them away and come back with a full response. We will do so between now and the next stage of the Bill. If that suits the House, and bearing in mind that it is 7.25, I will not seek to weary noble Lords with a 10-minute exposition of why the Government's case is a consummation devoutly to be preferred.

Lord Lester of Herne Hill: My Lords, that is a wise course. I hope that at some time the Government will answer my simple question: why leave out this provision for goods, services and facilities but put it in for education and housing? On the basis that this will be reconsidered before Third Reading, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 49 [Premises]:
	[Amendments Nos. 121 and 122 not moved.]
	Clause 51 [Educational establishments]:
	[Amendment No. 123 not moved.]
	Clause 52 [Section 51: exceptions]:
	[Amendment No. 124 not moved.]

Baroness Royall of Blaisdon: My Lords, I beg to move that consideration on Report be now adjourned. In moving this Motion, may I suggest that the Report stage begin again not before 8.27 pm?

Moved accordingly and, on Question, Motion agreed to.

Countryside and Rights of Way

Lord Greaves: rose to ask Her Majesty's Government whether they are satisfied with the progress that is being made on the introduction in England of the access provisions in Part I of the Countryside and Rights of Way Act 2000.
	My Lords, it is five years since many of us were in this Chamber debating the CROW Bill, as it was then. At that time the Liberal Democrats gave the Bill substantial support. Two weeks before the mapping of the last two areas is due to be published in its conclusive form seems to be a good time to revisit the way in which the Act has been implemented, the access and the way it is going to be continued.
	I thank all the speakers who have put their names down,. It is quite a good turnout for an Unstarred Question during the dinner hour. I particularly look forward to the maiden speech of the noble Lord, Lord Smith of Finsbury. I should declare an interest as a recreational user of what is now generally known as MMHD—mountain, moor, heath and down—and also as a somewhat inactive member of the access and conservation group of the British Mountaineering Council.
	The Minister will be pleased to learn that I shall start on a positive note. My personal experience of this is that a large area of the south Pennine moors, near where I live, is now open. I can walk and scramble on Boulsworth moor, which overlooks the valley where I live. To be honest, I should say that I can now go and do that legally, which always gives one a certain amount of confidence, and takes away that nagging worry that someone will appear with a gun and boot you off. A local crag called Hugencroft, otherwise known as Hawkstones, though not an immensely important rock-climbing crag, is now open. That is good news. We used to go climbing there about 35 years ago, but it has been closed for 30 years. However, it is now open as a result of an extremely sensible and pragmatic decision by the inspector at the local hearing.
	More widely, large areas of mountain and moorland are open, particularly in the north of England and Wales, that were not previously open. That is something to be praised. Some of the wildest and most beautiful countryside that we have is now accessible to everyone, not just people who happen to be able to go there because of an accident of birth or because they have a lot of money.
	That said, there is a contrast with the legislation in Scotland. For whatever reasons—perhaps it is due to their different traditions—the legislation in Scotland appears to be better than the legislation than we were able to produce. It is a great deal less bureaucratic, and it is, I think, a great deal easier to implement. However, we are where we are, and we are stuck with the legislation that we voted through.
	When we discussed the Bill five years ago, there were dire predictions that it would lead to a great deal of conflict and that there would be altercations and difficulties. It is significant that very few great conflicts have arisen. There is a cause célèbre at Vixen Tor on Dartmoor that I do not want to discuss tonight, but apart from one or two instances, people have managed the new legislation sensibly and constructively. The Ramblers' Association reports only a few problems with blocked access and inappropriate signposts. I am sorry that the Country Landowners' Association is maintaining its attitude to the Act—it generally has a lot of sensible things to say—but even it has no long list of disasters to regale us with.
	Having said that and having given a general welcome to what has happened in the past five years, I think that this is an opportunity to point out a few of the problems that should be considered. First, it is clear that there are lots of problems with the mapping and that there have been lots of errors. Some land has been included as access land that should not have been included, and it is difficult to see why some of the pieces that have not been included have been left out. There have been problems of definition. There is the difficult question of semi-improved grassland, which was introduced as a compromise in your Lordships' House during the passage of the Bill. It has caused a lot of difficulty. It has caused difficulties in limestone areas, where it is hard to differentiate between natural limestone grassland, which is much lusher than that in gritstone areas, and semi-improved grassland. That has led to substantial problems in downland areas of southern England, where there is a widespread belief that not enough of the downland areas has been mapped as access land, as it ought to have been and as we intended. In other places, such as the gritstone Pennines and Wales, areas that used to be semi-improved grassland have reverted to moor. However, because the methodology has often been to use historic data, they have, in the view of many of us, been wrongly excluded from access land.
	As for rock climbing, there is a serious problem in a number of areas about whether rock faces and other predominantly rocky areas have been included. There has been a tendency, particularly when they are on the margins of access land or are in small plots on their own, to leave them out. That ought not to have happened. The methodology is clear: the Mapping Methodology for England, issued by the Countryside Agency, says that "mountain" includes,
	"crag, scree, fell or other bare rock"
	in upland areas and that "moor" includes rock outcrops. However, there is a significant number of areas where that has not been followed. One of the most serious cases—the only one that I will mention as an example—involves Crag Lough and Peel Crag in Northumberland, a substantial rock outcrop with bare rock, scree and associated rough vegetation. It is shown as moorland on the Defra map. The crag and the surrounding area should be mapped as open country, and they have not been, despite the fact that there has been a lot of representation from climbing interests and other interests in Northumberland. That is an example of something that has happened that affects the recreational use of such areas for climbing. One of the problems, if you use a rock face as a natural boundary to an access area—that is perfectly legitimate—is whether to draw the line along the top of the rock face or along the bottom of the rock face. In too many cases it has been drawn along the top of the rock face when there is no reason why it could not have been drawn along the bottom.
	The appeal process has led to a lot of disaffection. Because of the deadlines and the pressure to get the initial mapping done within the five-year timetable, the Countryside Agency has accepted objections from landowners without investigating them properly. It has simply said, "OK, we'll accept this and take it out of the access land". In many places—certainly in my part of Lancashire and adjoining parts of Yorkshire—that has created irrational boundaries, with a series of plots along the edge of the moorland that ought either to be all in or all out. In some cases, we have what has been described as a crenellated effect, with some in and some out, simply according to whether or not the landowner has objected. That cannot be logical and should be examined.
	There is a widespread view that the appeal system, which was modelled on the planning system, although it is rather different, is not fair. Third parties representing the potential recreational users of the land cannot take part in the third stage—the provisional map stage—at which people can make formal objections. The Government should consider whether that ought not to be changed.
	There is the question of when the process of revision will start. As it is clear, particularly on the margins and in one or two significant places, that the mapping system has not been perfect, there is a view that the revision should not wait for the full 10 years and that preparations for it should start now, five years on. It would be interesting to hear the Government's views on that.
	The question of restrictions and exclusions are now coming to prominence because we have the maps and people can continue to ask for them. The first point that must be made is that the website dealing with them is inadequate. It needs looking at again. The information is inadequate, the site is hard to use, and the consultation process is fairly derisory. For recreational users looking for information, it is almost impossible to use the website to see where the restrictions and exclusions occur. There is a fear of creeping restrictions, a fear that, because people can continue to ask for exclusions and restrictions at any time under Chapter 2 of the Act, they will look for a bit here and a bit there and, in the long run, get a lot. There is a growing feeling that applicants for restrictions and exclusions by and large get what they ask for. It never appears to be a big deal, but, if it is added up over years, it could be a significant bite out of the access land.
	There is also a fear about the Schedule 2 restrictions. The Defra website has it right: Schedule 2 activities are not allowed by the access provisions of the Act but are not banned if the landowner says that you can do it or if there is a tradition of such use in an area. The way in which some local access authorities interpret the Act and put up signs suggests that the activities are banned. As the Bill was going through, we feared that there would be de facto bans on activities in the countryside, and that is, potentially, slowly coming about.
	I could talk a great deal more. I will not, or I will have the noble Baroness glowering at me. I have been talking about areas where there are problems, but, by and large, the Government should be congratulated on how far they have got. However, the situation needs looking at again.

Baroness Thornton: My Lords, I thank the noble Lord, Lord Greaves, for initiating this debate. I am also delighted to be here to enjoy the maiden speech of my noble friend Lord Smith.
	I remember well helping to take the Countryside and Rights of Way Bill through your Lordships' House, participating in the debates and sharing whole nights, several of them late, with some of the noble Lords speaking here today. I hope that they will feel as proud as I do at having helped to put such successful and popular legislation on the statute book.
	The Countryside and Rights of Way Act 2000 has delivered huge public benefits, particularly in the north of England. It is an enormous step forward and, thanks to it, many wild and open spaces have been made legally accessible to the public for the first time. Before the passage of the Bill, as the noble Lord, Lord Greaves, mentioned, we heard much scaremongering from its opponents, warning that rural crime would increase, the public would be lured to their death, or there would be an increase in conflict in the countryside. That does not appear to have happened. Even though it is early days, it seems that the implementation of the Act has been largely trouble-free.
	Overall, the achievement is massive. The Government should be congratulated but we should not stop here. I wish to take this opportunity to encourage the Government to encourage the public to use the new access and to do so responsibly. The Ramblers' Association, of which I am a somewhat sedentary member, has suggested that there should be a national access database providing comprehensive information on where people can go and what they can do in the countryside, which would be beneficial. The Government floated that idea themselves some years ago but it did not go ahead. I agree with the noble Lord, Lord Greaves, that www.countrysideaccess.gov.uk is not very user-friendly. We should perhaps rename the website to something such as www.letsgoforawalkinthecountryside.gov.uk so that at least it would tell people what it was about. It should be comprehensive and should show access, rights of way, access offered by agri-environment schemes, and so on. That would be much more useful.
	I am pleased that the Government have set up the access management grants scheme to provide funding for local authorities to implement the CROW Act—I said that I would not call it that. The funding has already been extended once, to 2007, and I hope that the Government will further extend it to help local authorities to pay for the ongoing management of access scheme.
	It is a bit disappointing that not as much land has been mapped as should have been. However, it is an enormous and complicated task which no one has ever attempted before so, I suppose, it was inevitable that some mistakes would be made. I would be interested to know the Government's plans for reviewing the maps.
	Finally, will the Minister comment on plans to extend access to coastal areas, which is allowed under Section 3 of the Act? I hope that I have made up a little time.

Earl Peel: My Lords, I, too, thank the noble Lord for introducing this short debate. I also look forward very much to listening to the maiden speech of the noble Lord, Lord Smith.
	The Bill could be described as a curate's egg. I hope that the Minister will understand that, given that I have only a few minutes, I will inevitably concentrate on the bad rather than the good. I declare an interest as an owner of access land in the north of England.
	One thing we know is that the Bill has been costly. Furthermore, it has been very costly to providers of access, who have had to put their hands pretty deep into their pockets, against the advice and suggestions of the Government during the passage of the Bill. The provision of good clear signage is one of the key ingredients to the success of the legislation. Whereas the Act empowers access authorities to install access signs, there is evidence of considerable variety in practice between access authorities. It is very good in Lancashire, where the noble Lord, Lord Greaves, is from, but in Durham it happens to be rather bad.
	One of my aims today is to get an assurance from the Minister. Like the noble Baroness, Lady Thornton, I hope that ongoing finance will be available to local authorities, through the Government, to ensure that the Bill can be properly conducted at local level, and that there is in place proper signage that will not only benefit walkers who come to enjoy the countryside, but will also give owners and occupiers confidence that the restrictions and closure orders will be in place.
	The Minister knows my view on the issue of dogs, as I have spoken on it previously. We very much welcome the restriction of dogs to footpaths on grouse moors because of the nature of the land, the management structure in place, the importance of ground-nesting birds and so forth. But there is growing evidence that a lot of people ignore those signs and that dogs create serious difficulty, particularly in areas close to large conurbations. As I said previously, I cannot see the point of having designated areas, such as ASSIs, SPAs and SACs, if the reason for those designations—ground-nesting birds—is undermined by people who do not control their dogs. I hope that the Minister will take that into account.
	On the subject of dogs and disturbance of wildlife generally, is the Minister satisfied that the monitoring of the impact of access on all wildlife is carried out robustly and professionally? Furthermore, will he confirm that any reports emanating from those investigations will be put into the public domain?
	The Minister will be aware of the dangers of fire both in terms of economic damage and wildlife damage. The Act includes the strange system of the fire severity index. Closure orders take place only when level five is likely to be reached. Those of us who experienced this year's long, dry summer will appreciate only too well that the prospect of real fire damage, despite the fact that level five on the fire severity index was not reached, was enough to have potentially created an enormous problem. There was not a problem that I am aware of, but the local authorities made little attempt to warn visitors of any potential dangers because of the fire risk. Will the Minister give some consideration to what I regard as a very unsatisfactory state of affairs? Fire damage is a frightening experience, and unless more is done to warn the public of it, there is a danger that it might develop into a real difficulty under the Bill. I would hate to see that.

Lord Smith of Finsbury: My Lords, it is with some trepidation that I rise to make my first contribution to the discussions in your Lordships' House. But I am pleased to do so on a subject very dear to my heart. I must declare an interest as president of the Ramblers' Association—and proud to be so—but also, more importantly, as someone who has, over many decades now, tramped the hills, open country and moors of our land.
	The Countryside and Rights of Way Act, which enshrines on the statute book a genuine freedom to roam, is based on a very simple principle—that every citizen of our country, no matter who or what they are, where they come from or how much money they have, should be able to walk freely over the open country, mountain and moorland that forms such an important part of the landscape of our islands. People have argued and campaigned for that freedom to roam, in this House and another place, for more than 100 years, since James Bryce first introduced his Access to Mountains (Scotland) Bill.
	It was one of my proudest moments as Secretary of State to put my signature to the Countryside and Rights of Way Bill when it first came before another place. I am delighted that now, as you go through the Trough of Bowland, in Lancashire, for example, there is no longer a parade of signs on both sides of the road saying "Keep out". Now it is possible to walk, wander and enjoy the fresh air and fine views. But, of course, the right of access and the freedom to roam is about responsible access. That is why the measured process of introduction of the Act has been essential and, on the whole, has gone remarkably well.
	I am very pleased that, on 31 October, the final two regions—the east and west regions of England—will become available for access. There have been some problems and issues. I am puzzled about why substantial areas of land which we would undoubtedly describe as downland in the south-east region have not been included in the maps. Those are issues that, as mapping is refined, will need to be looked at.
	The Government deserve genuine congratulations on having introduced the Act and now having carried it through to fruition. But of course I do not want them to stop there. What is now needed is a serious look at what might be done on access to coastal land, particularly to shore and foreshore; then perhaps a look at riverbanks and woodland. Some areas of woodland have been dedicated as access land by owners, particularly by the Forestry Commission. But let us look at what more might be done to ensure that the achievements of the Countryside and Rights of Way Act can be taken even further.
	Let us celebrate what has been achieved by the Act, and let us congratulate the Government on implementing it. But let us also be ambitious for what more can follow.

Viscount Eccles: My Lords, it is a privilege to follow the noble Lord, Lord Smith of Finsbury, speaking for the first time in your Lordships' House. He is of course an expert on the subject and also an experienced speaker. He must have had an excellent brief from the Ramblers' Association. I am very pleased to tell him that, on a couple of occasions, I have been told that the Ramblers' Association, when representations were made, behaved with decorum and respect. I think that the first time the Ramblers' Association wrote a code for behaviour in the countryside was almost immediately after the Second World War. So it has a long history of responsible behaviour in the countryside.
	Those who ramble often turn out to be enthusiastic about the arts and our heritage. Indeed, the noble Lord, Lord Smith, and I have things in common from the past. In 1998, as the Secretary of State, the noble Lord commissioned the late Richard Foster to write an excellent report on the Bowes Museum in County Durham. It has passed into local mythology that, when visiting the museum, the Secretary of State said that he would consider the Bowes carefully every night in his bath. I hope that the noble Lord will make another visit to the museum, where he and I can enjoy the art and then go on a ramble in the beautiful countryside around Barnard Castle. We hope to hear a great deal more from the noble Lord on matters creative, cultural and recreational. I must hope that noble Lords will join me on congratulating him very sincerely on his speech.
	I, too, am grateful to the noble Lord, Lord Greaves. However, having already taken up 50 per cent of my time, I shall concentrate on one point only, which has already been raised by the noble Lord, Lord Smith. There is a problem with the definition of "downland", which means rather different things in different parts of the country. Indeed, on old maps some things are described as downs which in other parts of the country I do not think would be. The dictionary describes "upland", "rolling country" and "chalkland". Since the agency has the right to make the first decision about what should be considered open country, it needs to take great care and be more open in its conclusions about what it would want to describe as downland.
	I say that because a lot of very small areas of land have come on the maps for the first time. I think that there have been some 3,500 appeals, not of all of them to do with small parcels of land—that is, five hectares and less. There have been a large number of appeals, which are expensive. It has been calculated that the average cost of an appeal is about £5,000. It would be expensive to spend £5,000 on an appeal relating to a five hectare field worth perhaps £15,000.
	Finally, I do not think that the agency has been able to be as helpful as it could be to those engaged in appeals and witnesses who come for consultation. For example, the agency continued with its wish to designate and refused to give a landowner a copy of the surveyor's report, although the report had concluded that it was not open country under the definition of the Act. So I hope that the Minister will take a message back to the agency to be very careful about small, isolated areas of downland. I suspect that the costs are outweighing the benefits.

The Earl of Mar and Kellie: My Lords, I congratulate the noble Lord, Lord Smith of Finsbury, on his excellent maiden speech. That he chose this subject does not surprise me at all, both from his television programme and from his long-term friendship with my Australian-domiciled brother. I want to join in my noble friend's Unstarred Question from the perspective of someone domiciled in Scotland. Since 9 February, the Scottish population has enjoyed the confirmed rights of responsible access to all land—that is, unless there is a good reason why they should not be there. Of course, that access, significantly, includes access to inland water. So I am now able to go canoeing, rowing and dinghy sailing on Gartmorn Dam in Clackmannanshire. Since it is less than two miles from my home, very convenient it is, too.
	I regret that the fishermen at the dam are still expecting their sport to be ruined. They had enjoyed exclusive rights to the dam before 9 February. They remind me of landowners in England having to grant access for the first time. Of course, what they fear—lots of kayakists screaming and yelling, as happens occasionally and regrettably in river pools—is unlikely to occur on open and static water.
	Let me change hats and speak as a landowner in Scotland with a network of footpaths, some of which I created or recreated from old maps. I do not believe that there is any more walking than before 9 February, at least not on land in my control. I am certainly more aware than ever before of my increasing duty of care to deal with hazards to access on foot, by bicycle or on horseback. Physical hazards such as those I was looking at yesterday—a collapsed manhole, for example—can be dealt with in a straightforward manner. However, human hazards—caused by motorbikes, quadbikes and cars driven on footpaths, which indeed are outlawed by Sections 66 and 67 of Part 2 of the Act—to legitimate access-taking seem to bear down heavily on land managers who have very little chance of preventing them .
	My conclusion on Scottish access is a rather pathetic complaint that landowners in Scotland have a greater duty of care which is not reciprocated among access takers. However, as an enthusiastic access taker on other people's land, I enjoy a new confidence—for example, to tell a farmer what I am about to do rather than to seek his permission to do it.
	In the English context, I am concerned about the slow progress towards access to water for non-mechanical boating. I recall moving an amendment attempting to legislate for access to water only for boats that could be carried to the water's edge by their crew. That concept was rejected for England and Wales but enacted in Scotland—more generously, in fact, as a launching trolley may be used. The BCU—really, the English Canoe Union—seems to be working away at creating access by the use of Section 16 procedures, the irrevocable dedication of low-lying land for access. Although that is a good use of the available legislation, it is desperately slow and, what is more, it is entirely dependent on the benevolent whim of the landowner.
	I support the Environment Agency's projects on the Waverney and the Mersey. I read an allegation in Canoe Focus that the DCMS is putting out information to non-watersports MPs that there is enough access-to-water provision. I find that hard to believe, given the volume of small boaters among the 50 million people who live in England.
	A more accurate picture may be gained from the Environment Agency's research note CRN 93 of June 2005, which states:
	"Constraints on access to rivers for canoeists continued to cause conflicts. Access to good white water is particularly lacking for more serious canoeists and this leads to clear evidence of unmet demand in some National Parks".
	If that is the position in National Parks, what is the situation in the ordinary country?
	I conclude with this. I hope that the Minister will be able tell us of a new positive approach to be taken by the Government to promote the use of small boats and to create access rights for their use.

Lord Judd: My Lords, I, too, thank the noble Lord, Lord Greaves, for introducing this debate. I am very glad that my noble friend Lord Smith made his salutary maiden speech within it. I should declare an interest as the president of the Friends of the Lake District, a vice-president of the Council for National Parks and a member of the Ramblers' Association. I am also a resident of the Lake District National Park.
	I, for one, warmly welcome the progress that has been achieved. There has been a significant increase in access, especially in the North—even in the Lake District, which already enjoyed relatively good availability. More of the most exciting and wonderful places are now available, bringing enhanced psychological and physical well-being for those who walk in them, as well as bringing benefits for the rural economy.
	However, walkers still report small but significant frustrations. These include locked gates, confusing signs, barbed wire fences and barbed wire suspiciously deployed alongside walls, unstable walls which inhibit crossing and the spread of dense bracken. Can my noble friend assure the House that he will encourage action by those with responsibility where such nuisances spoil the full enjoyment of what the new law should bring?
	Perhaps I may list in bullet point form some other points for action and attention by the Minister. There is the need to ensure that the mapping system is less complex and easier for the public to understand and engage with. We need more help for the public to enable them to have an effective say and influence in the process. We need a higher priority for site visits, as distinct from desk-based work. There are too many instances of imperfect maps in the absence of such visits. In the Lake District, the land around Skiddaw House is a telling example. We need a right of appeal for users as well as owners; limiting appeal to those with a legal interest in the land is surely unbalanced. It is important to make sure that downland which, for whatever reason, was not included where it should have been is included. Again, more site visits are required and the Countryside Agency should surely interpret downland less restrictively.
	We need a review of the provisions for semi-improved land. I understand that that is a particular issue in the south and south-east. Many people find it difficult to judge whether an area has been improved and to what degree. There is a need to improve information provided by the Countryside Agency. At present, it is almost exclusively available only by website. That is unrealistic for many of those who seek it. An improved telephone service would help. Where consultations on restrictions of more than six months take place, the website details of such consultations are often less than adequate. There is also a perception that comments by the public have little influence on final decisions.
	Often, there should be better signs to indicate restrictions and maps on sites should surely be based on Ordnance Survey to enable the public to interpret them. The Countryside Agency and Natural England could show more imagination and vigour in letting the public know about their new rights and how to enjoy them. The access management grant is good, but it is imperative for the Government to provide local authorities with more money for the future for the ongoing management of access. In order to ensure accuracy, I, too, am convinced that the Countryside Agency and Natural England should begin the map review exercise now. The less time there is, inevitably, the less accurate the outcome will be.
	There is widespread hope that the Government will speed the right of legal access to our superb coasts of England and Wales. It is also urgent to ensure more access to woodlands, with all their life and wonder. That may be especially relevant where private owners are in receipt of public funds. Specifically, in Cumbria and North Lancashire, it is necessary to clear up confusion that has arisen about access where the Manchester Corporation Acts involve the Haweswater and Thirlmere catchments and National Trust open land. In the meantime, it is to be hoped that landowners will not seek closures under the CROW for 28 days.
	There is considerable disappointment at the closure of land by English Nature in the North Pennines and at Warton Common on Morecambe Bay. In the case of the North Pennines, that seems to be a reverse of the access that it had previously granted. I certainly do not question the need for military training, but the Ministry of Defence, with its often encouraging policy on land, needs to review the amount of land banned at Warcop because of its possible use for 13 days each year for big guns.
	All those points I bring to the attention of the Minister for action and reassurance only because I believe that there has been a great success on which we should be building. Getting the nitty-gritty right is essential to that.

Lord Grantchester: My Lords, I join other noble Lords in thanking the noble Lord, Lord Greaves, for securing this debate today. It is now only just over a year ago, in September 2004, that my part of the countryside, the lower north-west, became one of the first areas to introduce the new right of access to open countryside. Indeed, within a few weeks, the final two regions, the west and east, will bring the process into full implementation. I also enjoyed the contribution of my noble friend Lord Smith and congratulate him on his speech.
	It is very early to draw conclusions about the introduction of access provisions, but I congratulate the Government on the success that has been achieved so far. Of the total area of England, some 7 per cent, or 936,000 hectares, has been mapped as open country or registered common land. Bearing in mind the small exceptions and land already open for access, of that total it is estimated that about 750,000 hectares will become accessible as of right for the first time.
	As walking in the countryside is a very popular pastime, the Act has been instrumental in extending the beauty of important parts of England to a wider audience. Bringing more people to enjoy the countryside must also bring further economic benefits to the rural economy. Although there has been timetabling pressure to complete the mapping process in time for areas to be opened, it has generally been achieved successfully. More than 3,000 appeals have been made, with the overall effect being a minor reduction of 2.3 per cent in the area of land to be accessed.
	The Open Access Control Centre was established in April 2004 to give advice and information on access to the public, landowners and land managers. More than 18,000 inquiries have been dealt with; the website has received more than 5 million hits; an updated Countryside Code has been launched to mark the four-year campaign to promote responsible behaviour in the countryside. The open access symbol, created in July 2004, showing where access land begins and ends is now highlighted on all new Ordnance Survey "Explorer" maps. Indeed, with the Kennel Club, guidance with advice for dog-walkers has also been published. I therefore commend the Countryside Agency on fulfilling this statutory duty to inform. I am not convinced that it is fair to claim that the uptake for this time, effort and expenditure has been limited.
	The Act balances the need of land managers with the public's right of access by its management of the restrictions process. This allows land managers to restrict access for up to 28 days each year, when and where necessary. This balance has also worked successfully. So far, more than 95 per cent of access land has normally been accessible for people without dogs and about 75 per cent for people with dogs.
	It has also been possible to reconcile access and nature conservation in sensitive areas—for example, sites of special scientific interest—and for sensitive species at sensitive times. English Nature has advised on the need for partial exclusions on only 44 SSSIs of more than 1,000 qualifying for access.
	In the north-west, the first year of experience of access is one to be positive about. Landowners and visitors have got on very well. The experience has highlighted that perhaps in the future more funds and focus should be put—via the access management grant scheme—on improving and upgrading footpaths. It has been the experience that generally people do not wander aimlessly, prefer to stick to well-worn paths for fear of getting lost, and walk in a circuitous route back to their starting point.
	A main concern still persists regarding the long-term management expenditure through the access management grant scheme. There has been a high level of participation with more than £3 million already committed of a three-year budget of £5 million. I urge my noble friend the Minister to be prepared to secure additional funds for land managers to make access work at the local level, to improve footpaths in line with the added weight of usage, to support continuing and adequate restriction advice and information to safeguard sensitive areas, and to focus on the provision of good quality access where it is needed most—that is, the hotspots.
	A monitoring programme has already been started to track the effectiveness of the initiatives undertaken. I understand awareness is increasing. This needs to be extended to take in an understanding of the patterns and levels of use, impacts on nature and the experiences of landowners and land managers. I look forward to a continuing story of success.

Baroness Miller of Chilthorne Domer: My Lords, I warmly thank my noble friend Lord Greaves for introducing the debate. It is a brief reunion for those of us who lived through many days and nights in Committee on the Bill. Indeed, during those days we spent two entire nights in Committee. The fact that the Bill has had so remarkably few problems as it has been enacted is in no small part due to the fact that we tried to iron out many of the problems at that stage.
	I warmly congratulate the noble Lord, Lord Smith, of Finsbury, on his maiden speech. It is wonderful that, as president of the Ramblers' Association, he has been able to make his maiden speech on this subject because that organisation played a large part in ensuring that the Bill was enacted and placed on the statute book. One of its small failures is in regard to semi-improved land, a point referred to by many other speakers. Frankly, we fudged the issue in this House; it was the product of a compromise between all parties. Sometimes compromises work; in this case it has not worked and is confusing the public. I hope that in the future the Government will consider revising it. Certainly the public do not understand at the moment why certain pieces of land are in or out.
	Many noble Lords referred to the issue of restrictions, particularly in regard to the website, which is the prime way in which the public are supposed to access information on whether or not land is restricted. Because of the time limitation I shall not spell out exactly to the Minister the problems with the website. I have tried it several times—I expect he may have done so too—and, frankly, it is not user friendly. It is absolutely appalling at the moment and really quite impossible to use. I hope the Government will consider other ways for the public to access information on restrictions, ranging from a telephone hot line to leaflets and so on. They are really important.
	Next year will be the first full year when restrictions for lambing, nesting and so on will come into effect, so it is very important that the provisions should work. A good start has been made by the cartoon campaign on TV. I had a few doubts about that campaign but, having watched several cartoons, I find it not patronising and quite informative. It needs to be built on.
	I wish to use the remainder of my time to speak about coastal access, an issue touched on by the noble Baroness, Lady Thornton, the noble Lords, Lord Smith and Lord Judd, and my noble friend Lord Mar and Kellie. We need to learn lessons about access to the coast. It will be very popular and we need to build on the natural inclination of the public towards places to go. I hope that the Government are not thinking that access to the coast will be simply a linear access in the form of a coastal path. They need to recognise that headlands, for example, which are natural viewpoints, are very important. Combes down to the coast are a natural way of accessing these areas and people will need a zone that recognises paths which give access to inland areas and to the coast. That zone needs to be wide enough to accommodate a practical way of stock management and wildlife needs. The Government need to give some considerable thought to the way in which coastal access is managed and I hope they will consult on this issue.
	Finally, with the access grant management scheme, which was mentioned by the noble Lord, Lord Judd, I hope local authorities will continue to be adequately funded for this work by the Government and that the Government will not see 2007 as a cut-off date for this funding.

Baroness Byford: My Lords, I, too, am grateful to the noble Lord, Lord Greaves, for initiating this very important debate. As we spent hours in Committee debating the CROW legislation, it is timely to reflect upon the progress made. I add my welcome and congratulations to the noble Lord, Lord Smith of Finsbury, on his maiden speech. We look forward to hearing his contributions in the future. He brings great experience to the House. I was particularly pleased that he touched on the need for responsible access.
	The CROW Act had four parts. Most people have concentrated on the right to roam but it also included the improvements of rights of way, the greater protection of wildlife and the introduction of formalising the position of areas of outstanding natural beauty. While we welcome the thrust of the Act, particularly that for improved protection of wildlife, I wish to concentrate on the practical implications that have resulted from it.
	I understand that long-standing problems existed during the definition of maps, absorbing a considerable amount of time, money and resources before they were overcome. Will the Minister tell us how much this cost and whether the money allocated to the local authority covered its costs? How many objections to the mapping exercise were lodged? What cost did the Countryside Agency have to bear with regard to the challenges made?
	In January of this year, the Countryside Agency, along with Defra, produced a report of a research project into motor vehicles on byways open to all traffic, something which the noble Earl, Lord Mar and Kellie, mentioned. My understanding is that some 42 per cent of traffic is caused by land management needs, 20 per cent is down to access of dwellings and 38 per cent is recreational. This last causes the most problems, particularly the type of recreation that involves 4x4 vehicles and motorbikes. I know that a number of associations are trying to ensure that their members are responsible. Can the Minister indicate what effect this research will have on Government thinking?
	On the right to roam, to which many noble Lords have referred, people on the whole try to observe the countryside rule—many stick to paths while others roam freely. But there is the question of dogs, particularly where sheep are involved. Having spent a week in September in the Brecon Beacons, I had my ear well bent by farmers who were very concerned about the effect of uncontrolled dogs which scattered sheep across the hillside, across brooks and ditches, and moved the hefted flocks from where they were used to being. Life is made more difficult, and sometimes, unfortunately, the response from walkers, particularly those with dogs, is unhelpful and occasionally abusive.
	I should like the Minister to comment on a point raised by my noble friend Lord Peel—the hidden costs which land managers and farmers have had to bear.
	In conclusion, I should like to make five points. First, will the Minister comment on the website failure, something that seems universally accepted around the Chamber? Secondly, does he feel that the closure days are adequately covered, and what happens when those days are ignored? Thirdly, how does the noble Lord balance the wish to have open access as much as possible with the need to protect wildlife management? Who is ultimately responsible for this very fragile balance? Fourthly, the noble Lord, Lord Judd, has a wish list. I suspect that if it were costed, it would be hugely expensive, but I should like the Minister to comment. Finally—I know that we shall touch on this again tomorrow night—what thoughts does the Minister have on the effect that the changes in CAP, the effect on land management and the possibility of under-grazing will have on open access?

Lord Bach: My Lords, I thank the noble Lord, Lord Greaves, very much for securing this debate. I thank all noble Lords who have spoken, particularly my noble friend Lord Smith of Finsbury for his excellent maiden speech. We will hear from him often in this House. He had a particularly successful parliamentary career in another place and will no doubt continue it here. He was too modest to say that he has bagged the Munros—I think that is the right expression—during his career, along with his namesake, the late John Smith on a number of occasions. I think that my noble friend Lord Howarth was also his companion on a number of occasions. I thank my noble friend Lord Smith very much for his speech.
	I am afraid that I have very little time now to sum up the debate—I have about as much time as the noble Baroness, Lady Byford, had. There is a lot I would like to say. If I do not answer all the questions that have been asked, I will of course write to noble Lords with the answers.
	The Act will for the first time ensure that people can enjoy, as a right, access on foot to areas of open country and registered common land in England and Wales, including some 750,000 hectares of land where there has previously been no statutory right of access. This brings access to some of England's most beautiful countryside which people have sought for well over a century. This great new freedom makes vast tracts of our finest countryside the delight of many and not the preserve of the few. Our target was to open all access land in England by the end of 2005. As my noble friend Lord Smith of Finsbury said, we will be implementing the final two regions on 31 October, two months ahead of our target date.
	The feedback that we are getting from places where the right has been in force for some time is that the new right has been welcomed with enthusiasm. The Peak District National Park Authority has reported that people are enjoying the right to walk in new areas, while landowners who have experienced the new right in action are finding that there are none of the major problems that some people predicted. I am particularly pleased to report that the Local Access Forum, which represents landowners and farmers as well as recreational users, supports that view. I now turn to answer some of the very good points that were raised during the debate.
	We were praised for the allocation that has been made to local authorities under the access management grant scheme and asked what our plans were when the £5.2 million that has been allocated up until the end of March 2007 from access management planning and on-site management and infrastructure runs out. I can tell the House that we will be reviewing the effectiveness of the scheme before deciding whether to extend the scheme for a further year. I hope that the results of that will be known by the middle of next year.
	I was invited by the noble Lord, Lord Judd, to encourage action about problems on the ground with barbed wire. The grant scheme to which I referred enables access authorities to do that, including funding for a rapid reaction service to deal exactly with that sort of problem.
	I was asked a lot of questions about maps and the website and many noble Lords said that the website could be improved. I will take that back and see what improvements can be made and whether they can be made soon. We are minded not to review the maps again during the 10-year period because there will be a statutory review at the end of that time. The agency has only just completed an enormous mapping exercise involving some 936,000 hectares of access land. There should now be a period free from consideration of mapping issues to allow everyone—landowners and walkers alike—to get used to the new rights of access and address any practical management issues that may arise.
	In answer to the noble Baroness, there were 3,173 appeals of which 2,347 were upheld—74 per cent—and 826 were dismissed.
	I have to end my response in one minute. We have reached a very important stage in the implementation of this new right of access. This debate is extremely timely. The Government are pleased in general with the progress that we have made in implementing this new and precious right. We are convinced of the opportunities and benefits that greater access to our countryside will bring for both walkers and local communities. This Act represents a considerable achievement by this Government which will be enjoyed and used by people for a long time to come.

Equality Bill [HL]

Consideration of amendments on Report resumed.

Baroness Scotland of Asthal: moved Amendment No. 125:
	Page 30, line 37, leave out paragraph (b) and insert—
	"(b) acts of worship or other religious observance organised by or on behalf of an educational establishment (whether or not forming part of the curriculum)."

Baroness Scotland of Asthal: I rise to move amendments which respond to a question raised in Committee, and seek to clarify what type of worship is being exempted in schools. The intention of the exemption is to protect the normal collective worship arrangements organised by or on behalf of a school from claims of discrimination or harassment by those who oppose it, for whatever reason. The current wording, which provides for the exemption of "religious worship" led to the suggestion in Committee that individual worship could also be exempt from the provisions, so a child engaging in private prayer in a quiet area of the classroom who was teased for that would have no claim of harassment if the school did nothing to prevent the teasing. I am sure that noble Lords would agree that a school should not be exempted from the discrimination or harassment provisions of the Bill if it permits the teasing of a pupil who is carrying out individual worship.
	Having looked again at the wording as we promised in Committee to do, that is indeed an unintended effect of the current wording, which we now seek to rectify by this clarificatory amendment. I am grateful to the noble Lord, Lord Lester, for raising the matter in Committee and to the draftsman for finding the form of words to achieve the necessary clarification. The amendment moved to Clause 54 is consequential upon that to Clause 52. I beg to move.

The Lord Bishop of Chelmsford: My Lords, I thank the Minister for the amendment, which we find most helpful. We are grateful for the work that has been put into it.

Lord Lester of Herne Hill: I also thank the Minister and her colleagues.

On Question, amendment agreed to.
	[Amendment No. 126 not moved.]

The Lord Bishop of Chelmsford: moved Amendment No. 127:
	Page 30, line 39, at end insert "or appropriate"

The Lord Bishop of Chelmsford: My Lords, the three amendments to the clause in my name have two purposes. First, they seek to modify the very severe test imposed by the word "necessary". When the clause was debated in Committee, the right reverend Prelate the Bishop of Newcastle maintained that the Church of England does not intend to harass any pupils in Church of England schools. That is obviously the case; nor, on the other hand, do we on these Benches wish to see Church of England schools accused of harassing pupils when they have simply been fulfilling their purpose as church schools to give all their pupils an excellent education founded on Christian belief and values, enabling them to develop into mature and responsible citizens of this world and—dare we say it—the next, as well.
	There are 4,700 Church of England schools, the great majority of which are primary schools serving their diverse local communities. More than 2,000 of them are voluntary controlled schools, with a varying understanding of their Church of England foundation. Can it safely be maintained that it is necessary for one Church of England school to have a cross or crucifix in the hall or a prayer board in a classroom, if another school down the road does not see it as necessary? Changing "necessary" to "necessary or reasonable" would allow greater flexibility without open season.
	Secondly, changing,
	"having regard to the purpose of the establishment",
	to,
	"having regard to the ethos of a particular establishment",
	does no more than clarify what we understand that the Government in any case intended—that each case would be taken on its individual merits and that the purpose of the school was intended to mean the school's ethos. That is a term that has often been used in the past to refer to the particular characteristics of a church school. Recent legislation has required each school to have an ethos statement in which it identifies its particular characteristics. The use of the word "ethos" in place of "purpose" would express that meaning more clearly.
	I hope that the amendments are helpful to the Government and acceptable to the House. I beg to move.

Lord Lester of Herne Hill: My Lords, I understand perfectly why the amendment has been tabled and spoken to, because it deals with harassment as well as with discrimination. If we get rid of the notion of harassment, it will make it much less necessary to limit the scope in the way that has been suggested. Therefore, I suggest that we should do no more than hear the Minister on this matter this evening and then hope that, if harassment goes, we can leave the Bill as it stands. In dealing with discrimination it is important that an exception to discrimination, which is a defined concept, should be no more than is necessary.

Baroness Scotland of Asthal: My Lords, I am sympathetic to the purpose behind the amendments, although I cannot accept their form. The particular exemption to which the right reverend Prelate made reference has been the subject of a lot of debate during the passage of the Bill. I believe that we all agree that no schools should be able to harass people in the sense in which that word bears its ordinary plain, English meaning. That is why we removed the blanket exemption in this clause in Committee and replaced it with a much more limited, current exemption. However, as we equally made clear in Committee, we also need to preserve in the Bill faith schools' ability to function as they do now, without having to divert resources to deal with claims of harassment that are not well founded. Such claims could arise, without the limited exemption, simply because of the way in which the definition of harassment works in the Bill, and not only in response to conduct that we should all recognise as harassment in its ordinary plain, English sense and would all rightly condemn. For example, a claim might be made on the basis that the school simply had a religious ethos, as the right reverend Prelate said, and manifested it in some ways that people found offensive.
	We need to strike the right balance to protect pupils from harassment, and faith schools from undue interference with their legitimate and proper operation. I had thought that, following earlier debate, this had been achieved, but this proposed amendment gives us a further opportunity to bring cohesion to the Bill, since government amendments have been tabled today for similar clauses in respect of goods, facilities and services, which adopt different wording again from any tabled earlier in the passage of this Bill. It would now therefore seem a good time to consider whether greater clarity across the piece might be gained by looking at whether that wording might be drawn on in this particular clause, with a view to achieving some consistency, while of course maintaining the spirit and intention behind the exemption as it stands at present.
	With that explanation I invite the right reverend Prelate not to press his amendment. I propose that we look again at this clause and give it further consideration at Third Reading.

The Lord Bishop of Chelmsford: My Lords, the Minister's response was very helpful. I look forward to seeing how we get on at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 128 and 129 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 130:
	Page 30, line 41, leave out "make regulations" and insert "by order"

Baroness Scotland of Asthal: My Lords, I move government Amendment No. 130 and speak to government Amendments Nos. 131, 132, 134, 135, 136, 137, 138, 164 and 165 standing in the name of my noble and learned friend Lord Falconer of Thoroton.
	Amendments Nos. 164 and 165 respond in particular to the suggestion by the Delegated Powers and Regulatory Reform Committee and others that the scope of the power in Clause 65 as we have it at present is too broad. They remove the power to create exceptions to Part 2, except in relation to public authorities, and take out entirely the power to remove exceptions from Part 2. We believe that it is right to retain a power to create exceptions which might be made necessary in relation to the functions of public authorities, and to vary the exceptions provided in Part 2. Our discussions on this Bill have shown that we are undertaking a fine balancing act in this area, and we consider it wise to allow for the possibility that an exception might require fine tuning at a later date. Any order made would be made by the affirmative procedure.
	The other amendments in this group serve to make the separate power in Clause 52, which applies to provisions in the Bill dealing with educational establishments, exercisable by order: these amendments place the power on the same footing as that in Clause 65 and in particular allow an order under Clause 52(4) to amend primary legislation.
	We believe that these changes meet the very proper concerns that have been expressed about this clause. I beg to move.

Baroness O'Cathain: My Lords, it is always a pleasure to be magnanimous in victory. I moved an amendment in Committee to remove Clause 65 because I did not think it appropriate that the Secretary of State should have such wide-ranging powers to remove exemptions which religious groups regarded as fundamental to their existence.
	The Government have relented, to a degree, and have agreed to place restrictions on the power in Clause 65 to amend those religious protections. Of course, I cannot claim that I am responsible for this government climb-down since it was undoubtedly in deference to the opinion of the Delegated Powers and Regulatory Reform Committee that these amendments were brought forward. Nevertheless, the amendments are an improvement.
	All I would say is that I hope Ministers will be exceedingly careful in using the remaining powers to tinker with the protections granted to religious groups. It would be a very serious concern if an executive fiat was used to undermine religious liberties. I also hope that we will be suitably diligent in scrutinising any orders which are brought before the House.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 131:
	Page 31, line 1, leave out "amending" and insert "amend"
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 132:
	Page 31, line 1, leave out "repealing" and insert "repeal"
	On Question, amendment agreed to.
	[Amendment No. 133 not moved.]

Baroness Scotland of Asthal: moved Amendments Nos. 134 to 138:
	Page 31, line 2, leave out "providing" and insert "provide"
	Page 31, line 3, at beginning insert "make provision"
	Page 31, line 5, leave out "Regulations" and insert "An order"
	Page 31, line 6, leave out "or incidental" and insert ", incidental or consequential"
	Page 31, line 6, at end insert "(including provision amending an enactment (including an enactment in or under an Act of the Scottish Parliament))"
	On Question, amendments agreed to.
	Clause 53 [Local education authorities and education authorities]:
	[Amendment No. 139 not moved.]
	Clause 54 [Public authorities: general]:
	[Amendment No. 140 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 141:
	Page 32, line 34, leave out paragraph (f) and insert—
	"(f) a decision of any of the following kinds taken in accordance with rules under section 3(2) of the Immigration Act 1971 (c. 77) ("immigration rules") or anything done for the purposes of or in pursuance of a decision of any of those kinds—
	(i) a decision to refuse entry clearance or leave to enter the United Kingdom on the grounds that the exclusion of the person from the United Kingdom is conducive to the public good,
	(ii) a decision to cancel leave to enter or remain in the United Kingdom on the grounds that the exclusion of the person from the United Kingdom is conducive to the public good,
	(iii) a decision to refuse an application to vary leave to enter or remain in the United Kingdom on the grounds that it is undesirable to permit the person to remain in the United Kingdom,
	(iv) a decision to vary leave to enter or remain in the United Kingdom on the grounds that it is undesirable to permit the person to remain in the United Kingdom;
	(but this exception does not have effect in relation to harassment),
	(fa) a decision in connection with an application for entry clearance or for leave to enter or remain in the United Kingdom or anything done for the purposes of or in pursuance of a decision of that kind (whether or not the decision is taken in pursuance of a provision of immigration rules) if the decision is taken on the grounds—
	(i) that a person holds an office or position in connection with a religion or belief or provides services in connection with a religion or belief,
	(ii) that a religion or belief is not to be treated in the same way as certain other religions or beliefs, or
	(iii) that the exclusion from the United Kingdom of a person to whom paragraph (i) applies is conducive to the public good;
	(but this exception does not have effect in relation to harassment),
	(fb) a decision taken, or guidance given, by the Secretary of State in connection with a decision of a kind specified in paragraph (f) or (fa) (but this exception does not have effect in relation to harassment),
	(fc) a decision taken in accordance with guidance given by the Secretary of State in connection with a decision of a kind specified in paragraph (f) or (fa) (but this exception does not have effect in relation to harassment),"

Baroness Scotland of Asthal: My Lords, the amendment standing in the name of my noble and learned friend limits the exception currently provided for the Immigration Service at Clause 54(4)(f), which has rightly been criticised as being too broad. In moving the amendment, I seek to resist Amendment No. 148 in the name of the noble Lords, Lord Dholakia and Lord Lester. The noble Lords questioned the exception currently at Clause 54(4)(f) very strongly on Second Reading, reflecting concerns expressed by the Joint Committee on Human Rights. Although I was unable to accept their amendment at that time, we have considered what change is possible and have brought this amendment along the lines that I indicated then. I hope that noble Lords will agree that it represents a considerable narrowing of the exception.
	The most significant change is to remove harassment entirely from the scope of the exception: we accept that there should be no occasion when the immigration service should be able to harass an individual on the grounds of their religion or belief. We believe, however, that there is a need to allow discrimination in limited cases. As I said on Second Reading, exceptions are needed in two areas. First, they are needed to protect our ability to exclude an individual from this country on the grounds that his presence is not conducive to the public good, even where the public expression of religious or other beliefs by that individual is part of the reason for exclusion. I am sure that noble Lords can think of examples where they agree that such exclusion would be justified, and we do not wish to see the provisions of Part 2 threaten that ability.
	The other area where there is discrimination that we believe should be lawful is in the provision of special schemes by which ministers of religion and other religious workers are allowed entry. In this area it is right to retain the ability to distinguish between groups for whom we will or will not make such a facility available. We have sought also to retain the ability to exclude an individual who has applied for such a scheme on grounds that their presence would not be conducive to the public good. The amendment allows a limited exception, and it balances our commitment to freedom from discrimination and harassment with our commitment to effective immigration controls.
	I shall now address Amendment No. 148, standing in the name of the noble Lord, Lord Lester of Herne Hill. I appreciate his concern, and I also appreciate the many contributions that he has made in our debates to help us to get these proposals right. From the concessions that we have made from this Bench, the benefit of his assistance is clear. In this particular instance, on balance, we do not feel it is right to reproduce the arrangements in the Race Relations Act 1976 to which the noble Lord has referred.
	The exception that we are now providing for immigration in our amendment to Clause 54 is relatively narrow in comparison with that which is provided at Section 19(D) of the RRA 1976. The exception to the RRA potentially affects large numbers of people: it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to differential treatment for the purposes of immigration control. Such treatment, where it amounts to direct discrimination, must be authorised by the Secretary of State, and those authorisations are reported on by the IND Race Monitor. There are a dozen or so in force. In this case, a relatively small number of decisions may affect a great many individual cases.
	The situation in the case of the exception provided in our amendment is different. The discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups. I very much understand the noble Lord's intentions in relation to the amendment; I had the advantage of speaking to him about it today. Notwithstanding what I have said, it may be possible for us to look one last time at what may be done on this matter. I say that perhaps to shorten the debate on it. I beg to move.

Lord Dholakia: My Lords, I thank the Minister for government Amendment No. 141. She promised to look into the issue when we debated it in Committee, and I am delighted that the amendment is now before us. We tabled such an amendment during the passage of the Race Relations (Amendment) Act, but it was resisted by the Government at that time. I am delighted at their change of heart on the matter.
	We support the exceptions made in the amendment, but we need to ensure that they are fairly applied. The Minister says that the exceptions relate to what is conducive to the public good, and to why it is undesirable for the person to remain in the United Kingdom. I have no difficulty with that. They relate to the four categories that she mentioned—refusing entry clearance, cancelling leave to enter or remain, refusing to vary leave to enter or remain, or varying leave to enter or remain. The question is not about the operation of paragraph (f), but about who supervises the provisions to ensure that there is no discrimination, particularly religious discrimination. The public good or why it is undesirable for a person to remain here have to be explained, otherwise such powers could be fairly oppressive.
	Our Amendment No. 148 is designed to meet that problem. We propose the appointment of a person to act as a monitor. There is a monitor on immigration cases, and issues relating to race ought to be looked into specifically. It is important that we have an annual report about the operations of the provision, and that it be available to Parliament. Will the Minister confirm that, at the moment, no particular authority can look at some of the issues that I have identified? Our amendment is designed to build confidence in the operation of exceptions that so far have been excluded from other anti-discriminatory legislation.

Lord Lester of Herne Hill: My Lords, like my noble friend I am glad that the Government have narrowed the exception in Amendment No. 141. All that I briefly want to deal with is why the independent Race Monitor could usefully be brought in to deal with religion in the context of the decisions taken under the amendment.
	The Race Relations Act goes beyond nationality. There is some extremely offensive stuff in there that would allow the Secretary of State to authorise racial discrimination against groups such as Roma or the Pontic Greeks, among others. I declare a professional interest because, in the Roma rights case, all that came up to the Law Lords and the Government did not rely on the authorisation made in that context. I agree; the stuff that I have just mentioned is unlawful and would be so, in effect, if ever used. That is why the Minister rightly focused on nationality, which is a much more acceptable form of discrimination, under immigration control.
	We have the independent Race Monitor, who is there as a check to give public confidence in the administration of immigration control. She is paid public money to perform that vital function, make annual reports and so on. We are now in a much more sensitive area than nationality discrimination. When deporting or turning away someone on religious grounds because, as individuals, they belong to an extremist, fundamentalist, religious organisation that is suspected of being a terrorist organisation or otherwise, we are dealing with one of the most sensitive issues. It would be in the interests of the Home Office, the immigration service and the public at large if the Race Monitor became a race and religious monitor, so that she is able to look at decisions which may, indeed, intertwine between race and religion in the case of ethnic minorities who also belong to a religious group, and the individual is considered to be someone who should not be allowed into the country or whose presence is not conducive to the public good. That is why our proposal is modest and is designed not to lead to litigation or anything of that kind but simply to enhance public confidence.
	Perhaps I may conclude by quoting Archbishop William Temple, who we used to quote many years ago. I am sorry that the bishops are not in their place at the moment. He once said:
	"Whenever I travel on the underground, I always intend to buy a ticket, but the fact that I know that there is a ticket collector at the other end just clinches it".
	I know that the Immigration Service intends to use its powers honestly and fairly and in a non-invidious manner. But the fact that there is a monitor to report on how it is working just clinches it.

Baroness Scotland of Asthal: My Lords, I have indicated to the noble Lord that we shall look at this. He will know that our current position is that we have judicial review and appeals and there are not many of these cases. But in our meeting with the noble Lord before the Committee, and now, he has made a point which I wish to examine properly. If we are unable to accept the amendment, I should like to give the noble Lord a full reason why that is the case.

On Question, amendment agreed to.
	[Amendment No. 142 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 143:
	Page 32, line 46, leave out sub-paragraph (iii) and insert—
	"(iii) acts of worship or other religious observance organised by or on behalf of an educational institution (whether or not forming part of the curriculum),"
	On Question, amendment agreed to.
	[Amendments Nos. 144 to 146 not moved.]

Baroness Scotland of Asthal: moved Amendment No. 147:
	Page 33, line 43, after "includes" insert "an enactment in or under"

Baroness Scotland of Asthal: My Lords, this is a minor technical amendment which ensures that the exceptions provided for public functions in Clause 54 properly cover subordinate legislation made under an Act of the Scottish Parliament and the making of instruments in or under enactments in Scotland. The amendment is to achieve consistency in the treatment of subordinate legislation as between England, Wales and Scotland. I beg to move.

On Question, amendment agreed to.
	[Amendment No. 148 not moved.]
	Clause 57 [Instructing or causing discrimination or harassment]:
	[Amendments Nos. 149 to 153 not moved.]

Baroness Miller of Hendon: moved Amendment No. 154:
	After Clause 58, insert the following new clause—
	"EXCLUSION ON THE GROUNDS OF RELIGIOUS ETHOS ETC.
	Nothing in the Part shall inhibit the right to exclude a person from any organisation or employment on the grounds of his belief (as defined in section 45(b)) or lack of belief where the holding of a particular belief is fundamental to the ethos of that employer or organisation."

Baroness Miller of Hendon: My Lords, in Committee, I introduced an identical amendment, which permits employers or organisations to restrict membership or employment to persons of a particular belief. This matter was drawn to my attention by the Girl Guides, whose members are required at every meeting to confirm in so many words their belief in God—which god is not specified and members of any faith are, of course, accepted. The same problem would have applied to the Scouts. It also applies to Freemasons and perhaps other organisations—especially youth organisations attached to places of worship, to say nothing of the Mothers' Union.
	I am very grateful to the Minister for having taken this problem on board and, in consequence, for having proposed Amendment No. 163, which introduces a new clause after Clause 61. However, I am sorry to say that I do not believe that the amendment goes far enough to meet the difficulty. That is because it is restricted to charities, and I do not know whether all the organisations that might be involved are charities. I assume that the Guides and Scouts are because they have told the Minister that they are satisfied with the proposal. But what about other perfectly respectable organisations, such as, again, for example, Freemasons, the Mothers' Union and the Boys' Brigade? They all give considerable support to charities without being charities themselves. And what about the Plymouth Brethren—a sect whose members require a certain, but not very onerous, religious ethos from its employees?
	I am not singling out the organisations that I have just mentioned for special treatment, such as the Guides and Scouts are to receive. For all I know, there may be dozens of respectable organisations out there with perfectly proper, justifiable reasons for requiring members and employees to conform to their perfectly reasonable religious ethos. And what about religious edifices—mosques, synagogues and even some churches? Is it not right, for example, that mosques and synagogues should be able to prevent employees consuming ham sandwiches on their premises; that the "Wee Free" Church in Scotland should not want to employ persons who, according to its ethos, desecrate the Sabbath; or that Baptists should not employ or admit as a member someone who has a drink problem?
	The second objection to the Government's proposed amendment is that it places an artificial deadline of 18 May 2005 on the charities that are exempted. I ask the Minister why that is the case. Is it suggested that some malign organisation will create a new fictitious charity designed to evade the provisions of the Bill? I think that we can rely on the Charity Commissioners to spot, and put paid to, any so-called phoney charity such as that.
	It seems to me that the concession to the religious susceptibilities of various organisations with a religious ethos may not be as wholehearted as it should have been, and that the Government want to give as little leeway as possible to persons whose reasonable views are entitled to be respected just as much as those of any applicant for a job or membership. In short, the Government's concession, which is welcomed—there is no doubt about that—does not go quite far enough and is still unduly restrictive. That is why I found it necessary to bring back my own wider and more inclusive amendment. I hope that the Government will find it possible to reflect on what I am seeking and, by the final stage of the Bill, accept it. I beg to move.

Baroness Turner of Camden: My Lords, it seems to me that the amendment would be very wide in its effect. It includes the words,
	"exclude a person from any organisation or employment on the grounds of his belief . . . or lack of belief".
	It appears that that means that it would be possible to exclude a teacher for not having a belief when the belief might have absolutely nothing to do with his teaching. For example, his function might not be to teach religious education but may be unconnected with religion. The wording of the amendment appears to go very wide, and it means that any organisation can decide that its ethos is religious and that it will not employ certain people. I consider that to be unacceptable.

Lord Lester of Herne Hill: My Lords, I agree with the noble Baroness, Lady Turner, and I shall take an example from the Scouts to illustrate the problem. I was sent a letter by a school teacher giving a practical example. He said that he was asked to take over the running of a Beaver Scout group because the previous leader had moved out of the area and his son attended the group. He was a primary teacher and so had the relevant skills. He agreed to do so. He made it clear that he did not attend church, but was told that it was not about that. The Scouts claim that they are open to all religions and backgrounds, so he thought it was all right. However, the application form said that although they do not discriminate on religious, ethnic or social backgrounds, they made it clear that unless he belonged to a religious body, he could not be accepted. He informed the leaders that he would provide a multicultural approach to the group, being supportive of any faiths or beliefs but without following any of them, as he would expect a Christian leader to support a child, for example, of Islamic faith within the group. But they refused to accept that. They said that an atheist could not provide spiritual guidance to children, nor support the children's own faith because an atheist has no values, moral or otherwise. They asked him to claim himself to be a non-practising Christian so that they could accept him, and he refused.
	I give that example to show that even in the Scout movement, if one accepted this amendment, there would be interesting legal problems about whether it was necessary for the ethos and so on. It seems to me to show that the Government have moved in the right direction, to the right point, but should not go any further.

Baroness O'Cathain: My Lords, I support my noble friends in their amendment, although I am sure that we shall hear reassurances from the Government that the amendment is unnecessary in the light of Clauses 59 to 61 and the provisions of the Employment Equality (Religion or Belief) Regulations.
	I take the view that religious liberty is too important to leave to chance. If we can place wording on the face of the Bill that makes the matter beyond doubt, we ought to do so. This amendment is a simple statement of assurance that the religious discrimination provisions of the Bill will not affect employment and membership within religious organisations. It will act as a discouragement to those who see the Bill as providing a whole new set of ammunition for attacks on religion or belief groups. It will act as a defence to which they can quickly turn when legal threats are intimated. It will provide clear guidance for the courts when cases are brought.
	I simply cannot see what could be wrong with including these words on the face of the Bill. I hope that the Minister will consider the importance of providing reassurance above the importance of neatness—something to which lawyers and civil servants can be pathologically attached.

Baroness Scotland of Asthal: My Lords, I have listened with great care to the noble Baroness, Lady Miller, and to the support given so trenchantly by the noble Baroness, Lady O'Cathain. I believe that my noble friend Lady Turner expresses a real concern and the noble Lord, Lord Lester, has the matter about right. We have not gone far enough before to meet the genuine concerns of the noble Baronesses opposite. It is right that we should deal with that, as we now have done. By the same token there will be real dangers about going further. I believe we have it about right.
	I hear what the noble Baroness says about Freemasons. In so far as Freemasons meet the description of a religion or belief, they would be covered. If they believe that they are not covered, we would be very pleased to hear from them. We believe that the position we have taken, balancing one issue against another, is about right and the Government do not feel that we are able to go further.

Baroness Miller of Hendon: My Lords, I thank the Minister for her reply and my noble friend for her support. I shall withdraw my amendment, of course, but I have one comment for the noble Lord, Lord Lester. I may be wrong, but he gave an example of a Scout troop. My understanding is that the Guides and Scouts were quite happy with the new amendment that the Government have kindly brought forward—Amendment No. 163. It states:
	"Nothing in this Part shall make it unlawful for a charity to require members, or persons wishing to become members, to make a statement which asserts or implies membership or acceptance of a religion or belief".
	If they are charities, that is why they were quite happy with that. I am assuming that there is nothing wrong with that and perhaps, in the case mentioned by the noble Lord, the Scout master or someone was behaving incorrectly. I understand what the noble Baroness, Lady Turner, said. At this stage I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.
	Clause 59 [Organisations relating to religion or belief]:

Baroness Scotland of Asthal: moved Amendment No. 155:
	Page 36, line 19, leave out "in so far as it is necessary or expedient" and insert "if imposed"

Baroness Scotland of Asthal: My Lords, in moving Amendment No. 155, I shall speak also to Amendments Nos. 156 to 158 and 160 to 162. These amendments respond to the debate in Committee following amendments tabled by the noble Lord, Lord Lester, which would have removed the word "expedient" from Clauses 59, 60 and 61, leaving a strict test that restrictions would be allowed under those clauses only when it could be shown to be necessary to do so, given the purpose of the organisation concerned. I said at that time that "necessary" by itself was too strict a test but that we would look for an alternative to the word "expedient".
	I believe that the draftsman has with these amendments provided us with a good alternative, which requires that there must be a causal connection between the purposes of the organisation and the restriction, but does not go so far as to require that the restriction is necessary. We believe that it provides a test which is well balanced between strict necessity and expedience, but which should be easily understood by the courts. I pay tribute to the draftsman for producing it and I hope that noble Lords will join me in doing so. I beg to move.

The Lord Bishop of Chelmsford: My Lords, I endorse the Minister's comments about the draftsman. We are content with these amendments and I thank her for them.

Lord Lester of Herne Hill: My Lords, I echo that remark and pay tribute to the draftsman and to the Government. This is a suitable way of meeting the points which were raised and I am grateful.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 156 and 157:
	Page 36, line 21, leave out "having regard to" and insert "by reason of or on the grounds of"
	Page 36, line 22, at beginning insert "in order"
	On Question, amendments agreed to.
	Clause 60 [Charities relating to religion or belief]:

Baroness Scotland of Asthal: moved Amendment No. 158:
	Page 36, line 35, leave out from beginning to first "the" in line 36 and insert—
	"(b) the restriction of benefits to persons of that religion or belief is imposed by reason of or on the grounds of"
	On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendment No. 159:
	Page 36, line 37, at end insert—
	"(1A) Nothing in this Part shall make it unlawful for the Charity Commissioners for England and Wales or the holder of the Office of the Scottish Charity Regulator to exercise a function in relation to a charity in a manner which appears to the Commissioners or to the holder to be expedient in the interests of the charity, having regard to the provisions of the charitable instrument."

Baroness Scotland of Asthal: My Lords, Amendment No. 159 introduces an exception to enable the charity regulators in England, Wales and Scotland to undertake their functions in respect of charities effectively. The amendment ensures that the Charity Commissioners and the Office of the Scottish Charity Regulator will be able to perform their functions in the best interests of the charity concerned, even if that should involve discrimination. For example, if the regulator needs to appoint a new trustee for a religious charity, they may feel it better to appoint someone who shares the religious belief of the charity concerned over someone with equal qualifications in other areas but who is of another religion or belief. It is right that they should be able to do so without arousing an allegation of discrimination under this part.
	This is a limited exemption which will not protect the commissioners or the OSCR in their other functions—for example, in the management of their offices or in procurement—and I hope that noble Lords will agree that it is appropriate. I beg to move.

On Question, amendment agreed to.
	Clause 61 [Faith schools, &c]:

Baroness Scotland of Asthal: moved Amendments Nos. 160 to 162:
	Page 37, line 2, leave out "in so far as it is necessary or expedient" and insert "if imposed"
	Page 37, line 4, leave out "having regard to" and insert "by reason of or on the grounds of"
	Page 37, line 5, at beginning insert "in order"
	On Question, amendments agreed to.

Baroness Scotland of Asthal: moved Amendment No. 163:
	After Clause 61, insert the following new clause—
	"MEMBERSHIP REQUIREMENT
	(1) Nothing in this Part shall make it unlawful for a charity to require members, or persons wishing to become members, to make a statement which asserts or implies membership or acceptance of a religion or belief.
	(2) Subsection (1) shall apply to the imposition of a requirement by a charity only if—
	(a) the charity, or an organisation of which the charity is part, first imposed a requirement of the kind specified in subsection (1) before 18th May 2005, and
	(b) the charity or organisation has not ceased since that date to impose a requirement of that kind."

Baroness Scotland of Asthal: My Lords, noble Lords will remember that we had a considerable debate in Committee about the need to ensure that the Scout and Guide associations were protected in this Bill. I expressed my complete agreement with that intention, and undertook to discuss the matter with the Scout and Guide associations. That has been done.
	It has also been our intention that the associations should be protected through Clauses 59 and 60 of the Bill, but, in discussion with the Scout and Guide associations, it became clear that, because of the particular nature of their foundation situation, the practice of requiring members to say the Promise could possibly be threatened by the Bill. We have accepted that this is the case, although, following those discussions, we do not consider that in other respects their activities are adequately protected by the Bill. We will be ready to review the situation in the Discrimination Law Review or the single Equality Bill, should difficulties arise at a later date.
	The specific effect of this amendment is to allow the Scouts and Guides to continue requiring their members to say the Promise. This requirement is a necessity if the associations are to remain members of the international movements they represent. In most circumstances, a charity that wished to restrict its membership would do so by ensuring that a charitable instrument adequately reflected its intentions, and it would then be covered by Clause 60. In this case, however, because the establishment of the Scouts and Guides was made by Royal Charter, we felt an additional exemption was justified. This will equally protect any other charities that may exist that are in similar circumstances.
	This is a narrow exception with a particular purpose, which I believe will be widely accepted and, I hope, endorsed by this House. I beg to move.

Baroness O'Cathain: My Lords, it is always gratifying to see a sensible argument succeed. The Government have been persuaded by the case made by my noble friends Lady Miller and Lady Wilcox in Committee, and give us hope that other sensible arguments may yet prevail, such as those I advanced earlier in our proceedings today.
	At the risk of seeming ungrateful, however, I must draw attention to the anomaly of including a cut-off point in the amendment. I know the Government will say that this is to prevent abuse of the protections, but what it says is that requiring a statement of faith is really an old-fashioned thing to do. It suggests that it was all right in the past, but is not something we should tolerate in the future.
	Any new charity that wishes to establish a religious oath without itself being religious will be excluded from this clause. If the Girl Guides and Scouts are held to be such a good thing and have such a wholesome influence on young people—and surely we are all agreed that they are; I am an ex-Guide myself—why can we not have another organisation like them today? Call them something else. Maybe a new group wishes to set itself up to benefit a specific region, or indeed an ethnic minority. Does it base itself on the Girl Guides model—"I promise on my honour to do my duty by God and my Queen, to help other people at all times and to obey the Guide Law"? That would be illegal. More thought is required on this issue. I hope the Minister will take this amendment away and give thought to whether the cut-off point is necessary.

Lord Lester of Herne Hill: My Lords, I am not altogether happy about this amendment. I mentioned the Beaver Scouts before. I suppose I was once a Scout and a Cub, but I cannot remember any more. I think I was, somewhere in north London. Anyhow, I am unhappy.
	I suppose the Scouts are a charity, but if they make a statement saying you have to be Christian, and then they muck about in the way I suggested happened in the case where an atheist was told he could not look after young people unless he pretended to be a Christian, that is an example of the kind of abuse this could lead to. It would probably end up in litigation.
	I understand why this provision is there, but I would not like it to apply to new organisations in our multi-religious, multi-faith world. I can see all kinds of examples in the non-Christian area. I am certainly not opposing the amendment, but I am glad that how it works in practice will be considered as part of the discrimination law review. I have my doubts.

Baroness Scotland of Asthal: My Lords, that demonstrates why we have probably got it right: the noble Lord, Lord Lester of Herne Hill, is not entirely happy, which shows that the Government's approach is balanced.
	I am reassured that we have probably got it right because, to my left, in the form of my noble friend Lady Ashton of Upholland, sits the ambassador for Guides. I should declare her interest, just in case people think that my will has been suborned.

On Question, amendment agreed to.
	Clause 65 [Amendment of exceptions]:

Baroness Scotland of Asthal: moved Amendments Nos. 164 and 165:
	Page 37, line 26, leave out "this Part," and insert "section 54(1), or"
	Page 37, line 28, leave out paragraph (c).
	On Question, amendments agreed to.
	Clause 72 [National security]:

Baroness Scotland of Asthal: moved Amendment No. 166:
	Page 41, line 16, leave out sub-paragraph (ii) and insert—
	"(ii) qualified to practice as a solicitor in Scotland."

Baroness Scotland of Asthal: My Lords, in brief, the purpose of the amendments is to ensure that the qualification requirement for solicitors to be eligible for appointment as a special advocate in a race, sex, disability or religion or belief discrimination case is broadly equivalent for solicitors practising in Scotland, England and Wales.
	The national security provisions in the Bill concern hearings about discrimination matters that may be heard in the county courts in England and Wales and in the sheriff court in Scotland. All Scottish solicitors have rights of audience in the sheriff court, and it is therefore unnecessary to limit appointments by the Advocate General under the provisions to solicitors who have rights of audience in the High Court or Court of Session in Scotland.
	We are grateful to the noble Baroness, Lady Carnegy of Lour, who is not present tonight, and to the noble Duke, the Duke of Montrose, who brought the need to make the amendments to our attention by tabling similar amendments to those included in this group in Committee.
	Finally, the amendments also make some minor technical changes to ensure that the provisions relating to procedures for appointing special advocates in discrimination cases are consistent across all the Acts in which they appear. I beg to move.

Baroness Miller of Hendon: My Lords, my noble friends Lady Carnegy of Lour and the Duke of Montrose are sorry that they are not here this evening. They left me a little note asking me to express their sincere thanks to the Minister for her co-operation in the matter.

On Question, amendment agreed to.
	Clause 73 [Validity and revision of contracts]:
	[Amendment No. 167 not moved.]
	Clause 78 [Employment Equality Regulations]:
	[Amendment No. 168 not moved.]
	Clause 80 [Interpretation]:

Baroness Scotland of Asthal: moved Amendment No. 169:
	Page 44, line 17, leave out from "a" to end of line 19 and insert "body entered in the Scottish Charity Register"

Baroness Scotland of Asthal: My Lords, Amendment No. 169 will bring up to date the definition of a charity in Scotland for the purposes of Part 2. In doing so, I pay tribute again to the noble Baroness, Lady Carnegy of Lour, and the noble Duke, the Duke of Montrose, who tabled a similar amendment in Committee. We were unable to accept that amendment, but I trust that this amendment has the effect that they intended.
	The effect of our amendment is that all charities operating in Scotland that are entered on the Scottish charity register will be regarded as charities for the purpose of Part 2. That differs slightly from the amendment tabled by the noble Baroness and the noble Duke in Committee, in that the specific term "Scottish charity", which was used in that amendment, is defined more narrowly in the 2005 Act and covers only charities established under the law of Scotland or managed or controlled wholly or mainly in or from Scotland, whereas the more general term "charity" is defined in the 2005 Act as any body entered in the Scottish charity register. We believe that it is right to cover the wider range of charities operating in Scotland.
	Amendment No. 190 is a technical amendment to extend to the Office of the Scottish Charity Regulator—the OSCR—the exemption already given to the Charity Commissioners in England and Wales. The OSCR was set up very recently through the Charities and Trustee Investment (Scotland) Act 2005. The exemption allows those bodies to discriminate on grounds of sex when exercising their functions in relation to charities, which, because of an exemption in Section 43 of the Sex Discrimination Act, can also discriminate on grounds of sex. It thus creates consistency across Great Britain.
	I pay tribute to the noble Baroness, Lady Carnegy, and the noble Duke, the Duke of Montrose. I have given such a long explanation because I am confident that they will read it, and hope that all the questions that they would have asked me have therein been answered. I beg to move.

Baroness Miller of Hendon: My Lords, the little note to which I referred was clearly not quite as little I thought because it now also includes sincere thanks to the Minister for Amendments Nos. 169 and 190. I hope that her remark that she had full confidence in the noble Baroness, Lady Carnegy, and the noble Duke, the Duke of Montrose, did not mean that she did not have quite so much confidence that I would convey to them every precious word that she said.

On Question, amendment agreed to.

Lord Alli: moved Amendment No. 170:
	After Clause 81, insert the following new clause—
	"PART 2A
	DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION
	Key concepts
	SEXUAL ORIENTATION
	In this Part "sexual orientation" means a sexual orientation towards—
	(a) persons of the same sex;
	(b) persons of the opposite sex; or
	(c) persons of the same sex and of the opposite sex."

Lord Alli: My Lords, I shall speak also to Amendments Nos. 171 to 187. I only wish that I had a note like that of the noble Baroness, Lady Miller, with which to give good cheer to the Front Bench. Alas, no such note exists. I also thank the noble Baronesses, Lady Turner of Camden and Lady Massey of Darwen, whose names are attached to the amendments.
	The amendments have been tabled for two simple reasons. First, the Government have sought to use the Bill to extend protection against discrimination in goods and services for faith communities, and, in particular, to protect Muslims against discrimination, or perhaps just as importantly, perceived discrimination. Their intentions are to be applauded but they have created an anomaly. If, as someone with a Muslim background, I were refused a hotel room on the basis of my religion, I would be protected under the provisions; but if I were refused the very same hotel room on the basis that I was gay, I would have no such protection. The amendments seek to correct that mischief.
	The second reason why these amendments reappear is the growing evidence of widespread discrimination, which needs to be tackled as soon as possible. I thank the noble Baroness, Lady Scotland, her colleague the noble Baroness, Lady Ashton, my honourable friend in the other place Meg Munn, and the Secretary of State for Trade and Industry for giving their time in dealing with the issue. I want to place on record my thanks to the Secretary of State for his commitment to do all he could to make that happen in this Bill, which he gave to the Labour Party conference only a few weeks ago.
	In Committee in July the noble Baroness kindly undertook to continue consideration of matching the Bill's proposed protection for faith groups with similar protection for the gay and lesbian community. It was on that basis that I withdrew my amendments in Committee, to give the Government the summer to start work on the necessary consultation and draft. I know that the noble Baroness, Lady Scotland, aided by her colleague the noble Baroness, Lady Ashton, has sought to convince a range of civil servants that they should include the provisions in this Bill if the timetable permits.
	The noble Baroness knows that lesbians and gay men are routinely insulted by being refused double rooms in hotels and guest houses. Such discrimination is already rightly unlawful, should hotel proprietors refuse rooms to black and Asian couples. That such discrimination towards gay people is still lawful can only reinforce discrimination against the lesbian and gay community in wider society. However, in the three months since Committee, there has been further compelling evidence.
	I will not bore the House with huge numbers of examples. But one that really struck home to me was that of a woman who described how a nurse demanded a male doctor to be present for her smear test, once the nurse found out that the woman was a lesbian. There are disturbing cases, which need to be dealt with now.
	I am mindful that Ministers have offered no satisfactory explanation of why those protections are less needed by gay men and lesbians today than they are for faith communities. The violent murder in London at the weekend goes to underline the vulnerability of the gay community. Even though we have made huge progress, a lot more still needs to be done.
	I am genuinely perplexed. I know that there is political will. The case for doing so is compelling. But the wheels of government are so slow. I understand from civil servants that there have been many discussions with key stakeholders and that there are no objections, in principle. So perhaps the noble Baroness will explain this to me: with a targeted six-week exercise, consultation could be completed before the Bill reaches the other place. Why can the Government not commit to doing that consultation and putting those provisions in the Bill? In any event, the existing provisions for religious groups were swiftly expedited and I cannot see any logical reason—no doubt, the Minister will find some eloquent words to help me with that—why this should not be too.
	I know that the noble Baroness is aware of the strength of feeling on this issue across this party, this House, and particularly on these Back Benches. I hope that she can assure me that action will be taken before the Bill reaches another place, for I believe that the case merits it. The previous time that the noble Baroness stood at the Dispatch Box on this issue, she gave me assurances that she and her colleagues would look at these issues over the summer. I am afraid that that time was squandered. Let us not make the same mistake again. I look forward to hearing what the noble Baroness has to say when she answers. I beg to move.

Baroness Turner of Camden: My Lords, I support these amendments. In Committee, I sought to introduce an amendment which would have extended to lesbian and gay people the protection against discrimination in the provision of goods and services, which the Bill sought to extend to those discriminated against on grounds of religion. My amendment was not very well drafted. I was advised that the Government were, in any event, due to introduce another Bill to bring legislation up to date. That would be a new equalities Bill, which would include protection for gay and lesbian people. However, that would mean a further lengthy waiting period.
	In the mean time, as my noble friend Lord Alli, has indicated, there is plenty of evidence that discrimination is now quite widespread. An article in the Independent recently demonstrated that gay and lesbian couples are frequently denied hotel accommodation, as my noble friend has indicated, sometimes—would you believe?—on the grounds that other guests would not like it.
	Now we have the Civil Partnership Act. I was appalled to learn that some local authorities are seeking to circumvent the provisions of the Act by refusing to permit civil partnership ceremonies on their premises. That is absolutely outrageous. Why should such bigotry stand in the way of citizens seeking to exercise a right which the Government say they should have?
	Moreover, in some areas and in some ways, we are still a homophobic society. There was the murder on Clapham Common recently, to which my noble friend Lord Alli, has referred. The police believe that that was homophobic. There have been instances of individuals being attacked simply because they were believed to be gay. It is about time that all that discrimination, which damages the lives of perfectly innocent people who simply want to get on with their lives, was ended.
	We now have before the House a much more sophisticated amendment than the one that I introduced in Committee. I hope that the Government will be prepared to consider it seriously and to accept the suggestion of my noble friend Lord Alli that there should be consultation. There is time between now and Third Reading and we must move to end that discrimination, which is quite unacceptable. I know that my noble friends on the Back Benches feel as we do about this. I commend the amendment to your Lordships.

Lord Lester of Herne Hill: My Lords, unfortunately, I asked for my name to be added to the amendments too late for it to appear before you now, but my name is there, even if you cannot read it.
	First, the Government have a fine record in the long march to secure justice for the gay and lesbian community. In particular, the Civil Partnership Act 2004, which I like to think that I helped to author, is a major step forward. Getting rid of the obnoxious Clause 28 was another example. In the field of employment, giving effect to European law was another. However, the Government have completely failed to meet the pressing need to deal with sexual orientation discrimination beyond the field of employment. Instead, they have chosen to introduce religious discrimination provisions, as the noble Lord, Lord Alli, said.
	In my case, giving effect to core policy in my party, the large Private Member's Bill that passed through all its stages in this House dealt with sexual orientation discrimination. It took four years in its preparation; there was huge consultation with every government department, with the CBI, the TUC and what are known as "stakeholders"—an appalling term. No one could say that during those four years of preparation there was not great consultation. That also put the Government on notice three years ago that the topic needed to be tackled.
	The Government were then put on notice by the amendments tabled by the noble Lord, Lord Alli, in Committee on the Bill. In Committee, I did an injustice to Stonewall that I want to correct. I criticised it for showing me the Alli amendments very late in the day. That turned out to be not at all the case; it was a misunderstanding in my office. I apologise for that.
	I also criticised the amendments tabled by the noble Lord, Lord Alli, in three minor respects, all of which have been met by the amended version now before the House. I am satisfied that there is nothing wrong with the amendments. If there is something wrong with the specifics, I should be grateful if the Minister would tell us what it is so that we know how serious it is and whether it can be put right. If we do not hear that from the Minister, I will assume that the amendments are fine and dandy and that, subject to brief consultation, they could be included in the Bill. I hope that it will not be necessary to test the opinion of the House; I hope that we receive absolutely cast-iron, positive responses from the Minister; but, if not, the noble Lord, Lord Alli, has our complete support.

Lord Smith of Finsbury: My Lords, I rise briefly to support the amendment tabled by my noble friend, Lord Alli. I promise the House that I will try not to speak quite so frequently on the same evening during the normal course of events. However, this group of amendments is important and raises an important point of principle. I know that the Government are sympathetic to the spirit behind the amendments, but the view that they appear to have taken up to now is that the time is not yet ripe for such measures. I simply remind my noble friends on the Front Bench of the splendid Cornford aphorism that the time is likely to be rotten before it is ripe.
	The problems of discrimination are here and now. They are happening today. They will happen tomorrow. They will happen the day after tomorrow. If we delayed until the day after the day after the day after tomorrow, discrimination will have taken place that we could have prevented. I hope that my noble friends on the Front Bench will take away these amendments and will think very seriously about how their principles can indeed be enshrined in the Bill before it finally departs from this House.

Baroness Miller of Hendon: My Lords, I listened with interest and concern to the stories recounted to the House by the noble Lord, Lord Alli. I should tell him that only two weeks ago a friend of mine told me two very similar stories about discrimination in medical services that were given to lesbian women, where the person concerned thought that it was improper that they should receive treatment. My colleague and I think that is quite disgraceful. I am quite sure that the Government will take away these problems and consider how they can be helped.

Baroness Scotland of Asthal: My Lords, I can assure noble Lords, particularly my noble friends Lord Alli, Lord Smith of Finsbury and Lady Turner, that we feel as strongly and as passionately about this injustice as do they. From the stance that the Government have taken through a number of Bills—not only this Bill but the Civil Partnerships Bill and other Bills in this area—I hope, that there is no doubt about our position.
	But there are some very difficult and complex issues involved when seeking to draft provisions which will appropriately meet the needs in this case. I can assure my noble friend Lord Alli that a great deal of work was done throughout the summer. He will know that the work in relation to the review on discrimination and harassment has been ongoing and that we have put a deal of energy into it.
	We, too, have been horrified by the incidents which have been brought to our attention—not least by the homophobic motivated murder on Clapham Common last weekend, to which a number of noble Lords have referred. So we are at one in relation to those matters.
	The question is: how quickly can this be done? My noble friend Lord Alli was right to underline the total commitment to this issue which has been expressed by the Secretary of State responsible for dealing with this matter primarily—that is, my right honourable friend Alan Johnson. He said that discrimination against people on the grounds of sexual orientation is wrong in all contexts. He wants to see it outlawed in goods and services and is absolutely committed to us achieving that in this Parliament. So I hope there is no misunderstanding about the level of commitment.
	We are not anxious to lose any time. I take absolutely the point made by my noble friend Lord Smith that we do not want to be rotten before we are ripe. But this is an issue which will take us a little time. We are continuing our discussions to see what more can be done in the course of the Bill. I certainly undertake to give your Lordships a full explanation of what we think we can do, both in relation to consultation or otherwise, when we come back to report.

Lord Alli: My Lords, I thank the Minister for that answer and I thank all who have spoken in support of these amendments. I have no doubt about the political will but, like my noble friend Lord Smith of Finsbury, I believe these provisions could be and should be made now.
	I give fair notice to the noble Baroness that in the weeks between now and when the Bill comes back we will expect her department to have made some significant progress in remedying this problem. In the event that they cannot or will not make it happen, I want my noble friend to be in no doubt that we will test the opinion of the House. She knows the strength of feeling on these Benches. But for today, given her words, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 171 to 187 not moved.]
	Clause 82 [Prohibition of discrimination]:

Baroness Ashton of Upholland: moved Amendment No. 188:
	Page 45, line 9, after "constitutes" insert "—
	"(a) "

Baroness Ashton of Upholland: My Lords, at Second Reading on 15 June, I set out the current position on harassment under the Sex Discrimination Act. It was confirmed that it did not currently expressly cover harassment. Your Lordships were also informed that most instances of harassment already fall within the concept of discrimination because of the way in which case law has developed.
	In Committee on 13 July, my noble friend Lady Scotland of Asthal confirmed that we were still waiting for the Sex Discrimination Act to be amended by the regulations implementing the Equal Treatment (Amendment) Directive introducing an expressed statutory concept of harassment in relation to employment and vocational training. The Employment Equality (Sex Discrimination) Regulations 2005 came into force on 1 October this year.
	My noble friend also announced the Government's intention to ensure that a prohibition of harassment is expressly included, alongside the provisions in Clause 82 prohibiting sex discrimination in the exercise of public functions. There would also be a comparable provision in Clause 83 which introduces a gender duty so that the duty places a specific obligation on public bodies relating to the elimination of harassment, paralleling that already in the Bill for discrimination. These amendments fulfil both these intentions.
	We are aware, in the context of sex discrimination, that we are not yet extending the protection against harassment for the provision of goods, facilities and services. However, we believe it is more appropriate for us to deliver this as part of the implementation of the European directive on the principle of equal treatment between women and men in the access to and supply of goods and services, commonly known as the gender directive. The Government are doing this in the context of the work on discrimination law review. We are also considering the best mechanism for the directive's implementation. I beg to move.

Lord Lester of Herne Hill: My Lords, this is, again, most welcome. It was one of the matters about which the EOC was particularly concerned. I do not have the same reservations about the notion of sexual harassment that I do about religious harassment, nor, for that matter, do I have the same reservations about the notion of racial harassment. If only it were covered, I would not have the same reservation about homophobic harassment, because the other three examples attack people because of their common humanity. In the field of sex discrimination, it is particularly important to capture harassment as well as discrimination. It is therefore very good news that this is to be included in Part 3. I only wish it were possible to give effect to the gender directive at the same time, purely because I would like to see as much of the law as possible stated on the face of the Bill rather than being dealt with later. Even if that is not possible, it will be done soon anyway, and I commend the Government for accepting the EOC's recommendations.

Baroness Lockwood: My Lords, I, too, welcome the amendments, which take us a long way towards what we have been asking for. The Government have listened very carefully to what has been said.
	I wonder if my noble friend Lady Ashton will emulate my noble friend Lady Scotland in responding to an amendment a few minutes ago, when she said that she would look one last time at what was being proposed. Will the Minister look one last time at these amendments and at the interpretation of "harassment", which does not seem quite as strong as it could be? It is rather a narrow interpretation in the sense that it does not, for example, cover third persons.
	Will the Minister also look at the whole question of the introduction of exemptions that will be covered when we get the EU directive on goods and services? There will be a short period of some months when different standards will be employed as to what is included in the Bill and what is excepted. That could cause great confusion to public bodies. Would it be possible to incorporate the EU directive in this Bill rather than wait until December 2007, when the directive would have to be implemented anyway?

Baroness Ashton of Upholland: I am aware of the concerns expressed by the Equal Opportunities Commission relating to the new provisions that Clause 82 introduces, especially, as my noble friend said, about the impact of the proposed exemptions to this prohibition. At this stage, I cannot claim that we have the perfect solution. We acknowledge that the issue of definitions and exemptions throughout the Sex Discrimination Act needs to be looked at more deeply. We believe that the Discrimination Law Review provides the perfect opportunity to do that because it will allow a thorough review of these issues with the aim of finding effective and practical solutions for incorporation in the Equality Act that we are committed to introducing in the life of this Parliament.
	We have thought very carefully about the Equal Opportunity Commission's points. We do not think that it is right to amend the Bill at this stage, but there is a genuine commitment to continue the dialogue and look at these issues in the context of the Discrimination Law Review, which is the right place to do so.

On Question, amendment agreed to.

Baroness Scotland of Asthal: moved Amendments Nos. 189 to 190:
	Page 45, line 9, at end insert ", or
	(b) harassment within the meaning of section 4A(1) and (2), (5) and (6)."
	Page 47, line 25, after "Wales" insert "or the holder of the Office of the Scottish Charity Regulator"
	On Question, amendments agreed to.
	Clause 83 [General duty to promote equality, &c.]:

Baroness Scotland of Asthal: moved Amendment No. 191:
	Page 48, line 7, after "discrimination" insert "and harassment,"
	On Question, amendment agreed to.
	Clause 85 [Codes of practice]:

Baroness Scotland of Asthal: moved Amendment No. 192:
	Page 51, leave out lines 28 and 29.
	On Question, amendment agreed to.

Baroness Ashton of Upholland: moved Amendment No. 193:
	Page 51, line 31, at end insert "(for which purpose the reference in section 56A(10) to specified proceedings before an employment tribunal shall be treated as a reference to criminal or civil proceedings before any court or tribunal)."

Baroness Ashton of Upholland: I rise to move Amendment No. 193 and to speak to Amendment No. 200. Amendment No. 193 relates to a code that the Equal Opportunity Commission prepares in respect of the public sector gender duty. Currently, the Sex Discrimination Act only provides powers for the EOC to prepare codes of practice in respect of employment matters. Consequently, that Act also provides that a code is only required to be taken into account by an employment tribunal but not by any other court or tribunal.
	Clauses 83 and 84 of this Bill provide for a public sector duty on gender. Since we anticipate bringing this duty into force in April 2007, which will be before the new commission will be able to prepare a code of practice, Clause 85 amends the Sex Discrimination Act to enable the Equal Opportunities Commission to prepare such a code. This is because prior to the establishment of the new commission, the EOC will be responsible for the implementation and enforcement of the gender duty.
	Without this amendment, such a code on the public sector gender duty prepared by the EOC would have to be taken into account only by an Employment Tribunal. However, as noble Lords will be aware, the gender duty covers issues which go beyond employment and a code will need to be taken into account by other courts. The amendment gives effect to that.
	Amendment No. 200 will enable the EOC on Royal Assent to start work on the code of practice to ensure that it is ready at least six months before the gender duty comes into effect. If we were to follow the usual conventions and commence this clause two months after Royal Assent, that could seriously jeopardise that timetable bearing in mind that Parliament will need to approve it before publication and allow it to be available to public authorities at least six months before implementation to enable them to make the necessary preparations. I beg to move.

On Question, amendment agreed to.
	Clause 86 [National security]:

Baroness Scotland of Asthal: moved Amendment No. 194:
	Page 52, leave out lines 26 to 28 and insert—
	"(ii) qualified to practice as a solicitor in Scotland".
	On Question, amendment agreed to.
	Clause 88 [National security]:

Baroness Scotland of Asthal: moved Amendment No. 195:
	Page 53, leave out lines 23 to 25 and insert—
	"(ii) qualified to practice as a solicitor in Scotland".
	On Question, amendment agreed to.
	Clause 89 [National security]:

Baroness Scotland of Asthal: moved Amendments Nos. 196 to 198:
	Page 53, line 30, leave out "67A(2)" and insert "67A"
	Page 53, line 30, after "security)" insert—
	"(a) in subsection (2),"
	Page 53, line 32, at end insert ", and
	(b) in subsection (3)(b), for sub-paragraph (ii) substitute—
	"(ii) qualified to practice as a solicitor in Scotland.""
	On Question, amendments agreed to.

Baroness Greengross: moved Amendment No. 199:
	After Clause 89, insert the following new clause—
	"PUBLIC AUTHORITIES: CARE STANDARDS
	(1) This section applies to any establishment or agency within the meaning of sections 1 to 4 of the Care Standards Act 2000 (c. 14).
	(2) Any care establishment or agency is deemed to be a public authority in relation to the provision of care services subject to the Care Standards Act 2000 for the purpose of section 6 of the Human Rights Act 1998 (c. 42) (acts of public authorities)."

Baroness Greengross: My Lords, I am getting used to having the very last amendment late at night, so I shall be brief. This amendment would protect the most vulnerable people in our society. If we do not reach those people, the Act will not achieve its aims. At the moment, 91 per cent of care home places and domiciliary care are provided by the private and the voluntary sector, but we know that nearly all those places are paid for by public authorities. So there is a terrible anomaly, which particularly concerns the two organisations that campaign all the time for older people, who are the majority of people in care and in nursing homes—that is, Age Concern and Help the Aged. Those people have the same human rights as anyone else and are very often more vulnerable to abuse than other people. The fact that the national health service was designed as it was after World War II, which did not take account of nursing home or residential home care or bring them under that umbrella, is an anomaly that we are still dealing with. However, since the Leonard Cheshire case, those very vulnerable people are not covered, because the definition of "public authority" does not cover them; and that is quite wrong and must be changed. It is really quite outrageous, in fact.
	I know that the Government are sympathetic with what I am saying, and I am very grateful to the noble Baroness, Lady Ashton, because she has met with me and talked about the matter. They want to wait for a test case; but, as I said, most of the people that we are talking about are elderly and very frail and cannot wait indefinitely for such a test case. We cannot be certain that the test case is going to come out the right way, either, because it is a test case. So the Government need to give us clear assurances now that they understand the urgency of the situation and will do something to change the definition of "public authority" so that it can be incorporated in some way into the Bill. I beg to move.

Lord Lester of Herne Hill: My Lords, I entirely agree with the criticism that the noble Baroness, Lady Greengross, made of the Leonard Cheshire decision. I believe that it was wrongly decided and that it will be overturned in a suitable case in the House of Lords. I also believe that Age Concern should warn any care establishment or agency that if they consider themselves to be private in that they have no responsibility under the Human Rights Act, they are wrong. If they dispute that, I believe that it would not be impossible for Age Concern to bring appropriate proceedings themselves, no doubt with the Government intervening. We know that the Government's position is that the approach taken by the Court of Appeal is not correct in accordance with the intention of the legislation.
	Having said that, the problem that the legislation raises is whether we should deal with the problem specifically in the context of this particular care standards issue or by amending the Human Rights Act. My difficulty here is that the problem extends well beyond this particular important issue. The problem really is the extent to which private bodies—what I call "private governments"—exercising public powers are within the scope of the Human Rights Act. It is a boringly technical point in a way, but if we accepted this amendment, what would we do about all the other situations that should be dealt with as well? We get back to the lists problem of the noble Baroness, Lady Ashton. I believe that I was touting for unpaid work at one point. However, I believe that it would be perfectly possible to get a case up to the Law Lords given enough will and support from the Government and others. Therefore, I entirely agree with the reasons for the amendment but I am not sure that this is the right way of going about it.

Baroness Ashton of Upholland: My Lords, I have now abandoned my notes completely. The noble Lord, Lord Lester, raised issues that are of great concern to us. As the noble Baroness, Lady Greengross, will recognise, we are very concerned to try to find the appropriate case in which to address these questions. However, I say as a non-lawyer myself, that I equally understand her desire to address this matter urgently, particularly for the sake of the frail and vulnerable people in our society.
	My commitment is twofold. First, the Government are committed to look for a case in which to address the issues, as the noble Lord, Lord Lester, said. Secondly, we want to undertake further work with the noble Baroness, Lady Greengross, between now and Third Reading to see whether there is anything further that we could do. It is important that in addressing this matter we do not open up the situation in terms of definitions, as the noble Lord, Lord Lester, said. However, it is possible for us to look more closely and carefully at whether we might do more to address the immediacy of the problem. Regardless of the fact that it is the final amendment of the day, it is incredibly important. I am grateful to the noble Baroness for staying to raise these issues because they are so important. I give a commitment that we shall look again at the matter before Third Reading to see whether we can do something further.

Baroness Greengross: My Lords, I am extremely encouraged by the comments of the noble Lord, Lord Lester, and the noble Baroness. I hope very much that the attitudes that they have expressed mean that something will be done in the very near future. As I say, we are talking mostly about people who cannot wait. I thank the noble Baroness and the noble Lord very much indeed for their consideration and sympathy. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 92 [Commencement]:

Baroness Ashton of Upholland: moved Amendment No. 200:
	Page 54, line 5, leave out "and 44" and insert ", 44 and 85"
	On Question, amendment agreed to.
	House adjourned at three minutes before ten o'clock.